Severson v. Smith's Food & Drug Centers, Inc.

• Court: District Court, D. Nevada
• Decided: December 4, 2020
• Docket: 2:20-cv-01916
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 LINDA SEVERSON, Case No. 2:20-CV-1916 JCM (NJK)

8 Plaintiff(s), ORDER

9 v.

10 SMITH’S FOOD & DRUG CENTERS, INC., et al., 11 Defendant(s). 12

13 Presently before the court is plaintiff Lina Severson’s motion for voluntary dismissal 14 without prejudice. (ECF No. 9). Defendants Smith’s Food & Drug Centers, Inc. (“Smith’s”) 15 and Jason Sonnenburg responded in opposition (ECF No. 10) to which Severson replied. 16 (ECF No. 13). Also before the court is Sonnenburg’s motion to dismiss. (ECF No. 6). 17 I. Background 18 Severson alleges that Smith’s improperly maintained an unreasonably slick walkway 19 near its store entrance. (ECF No. 1-1 ¶ 8). She sued Smith’s and the store manager Jason 20 Sonnenberg in Nevada State court, alleging negligence. (Id. at ¶ 10). Smith’s filed an 21 answer to Severson’s complaint in state court (ECF No. 1-1 at 10–13) and removed the case 22 to this court. (ECF No. 1). On October 19, 2020, Sonnenburg moved to be dismissed from 23 the case, asserting that he was not employed by Smith’s on the day of Severson’s slip-and- 24 fall. (ECF No. 6 at 2–3). Severson now moves to voluntarily dismissal the entire case. 25 (ECF No. 9). 26 . . . 27 . . . 28 1 II. Legal Standard 2 If the opposing party has served either an answer or a motion for summary judgment, 3 a case may be dismissed at the plaintiff’s request “only by court order, on terms that the court 4 considers proper.” Fed. R. Civ. P. 41(a)(2). A dismissal under Rule 41(a)(2) is without 5 prejudice. Id. The Ninth Circuit has stated that “[a] district court should grant a motion for 6 voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some 7 plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Legal 8 prejudice means “prejudice to some legal interest, some legal claim, some legal argument.” 9 Id. 10 III. Discussion 11 Defendants oppose dismissal of the entire case. (ECF No. 10). They ask the court to 12 dismiss Sonnenburg only. (Id. at 4). They assert that they will suffer legal prejudice because 13 Severson is forum shopping and they have incurred expenses in removing this case to federal 14 court and filing a motion to dismiss Sonnenburg. (Id. at 2, 4). That is, Severson wants to 15 “re-file in state court but this time . . . name an employee resident that was working at the 16 store at the time of the alleged accident” to engineer a diversity jurisdiction-proof case. (Id. 17 at 2). 18 A defendant does not suffer legal prejudice merely because it “faces the prospect of a 19 second lawsuit” or because the plaintiff “gains some tactical advantage.” Hamilton v. 20 Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). Incurring minimal 21 expenses in defending a lawsuit does not amount to legal prejudice either. Id.; United States 22 v. Berg, 190 F.R.D. 539, 543 (E.D. Cal. 1999) (“Plain legal prejudice may be shown where 23 actual legal rights are threatened or where monetary or other burdens appear to be extreme or 24 unreasonable”). 25 The expenses incurred by Smith’s at this stage do not make dismissal prejudicial. 26 And Severson’s litigation tactics are not the kind of prejudicial forum shopping that Smith’s 27 cites in its opposition to dismissal. See Cent. Montana Rail v. BNSF Ry. Co., 422 F. App’x 28 636, 638 (9th Cir. 2011) (finding that the defendant “could face litigation in state court of a 1 | claim that had reached the summary judgment stage in federal court after almost four years 2| of litigation”); Kern Oil & Ref: Co. v. Tenneco Oil Co., 792 F.2d 1380, 1389-90 (9th Cir. 3 | 1986) (finding prejudicial forum shopping where the plaintiff sought to avoid a specific 4| judge). Smith’s can always remove Severson’s second case and argue that she fraudulently 5 | joined a non-diverse defendant to defeat federal jurisdiction. 6 Because Smith’s will not suffer legal prejudice if this case is dismissed at this stage, 7 | Severson’s motion for voluntary dismissal without prejudice is granted. 8} IV. Conclusion 9 Accordingly, with good cause appearing and no reason to delay, 10 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Severson’s motion 11} for voluntary dismissal without prejudice (ECF No. 9) be, and the same hereby is, 12} GRANTED. 13 IT IS FURTHER ORDERED that Sonnenburg’s motion to dismiss (ECF No. 6) be, and the same hereby is, DENIED as moot. 15 The clerk shall close the case. 16 DATED December 4, 2020. 17 te lian 18 UNFTED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge _3-