United States District Court, D. Utah, Central Division
H.A. FOLSOM & ASSOCIATES, INC., a Utah corporation d/b/a Folsom Associates, Plaintiff,
MICHAEL CAPEL, an individual, Defendant.
MEMORANDUM DECISION AND ORDER GRANTING 
PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL WITHOUT
Nuffer United States District Judge
H.A. Folsom & Associates, Inc. (“Folsom”)
moved for the voluntary dismissal of his
Complaint under Fed.R.Civ.P. 41(a)(2). At the time
the motion was filed, Defendant Michael Capel (“Mr.
Capel”) had already served his Answer to the
Complaint. Folsom argues that granting the dismissal
is appropriate because “Mr. Capel would not be
prejudiced in any way” by the dismissal.
Capel responded by filing a “conditional notice of
non-opposition” to the Motion.Mr. Capel took issue with the
request for dismissal due to the “significant amount of
time and effort” that have been expended to date in the
case. Mr. Capel then requested that the
dismissal be conditioned upon Folsom paying for Mr.
Capel's legal fees and costs to date. Mr. Folsom
replied arguing that the circumstances here do not
warrant the payment of Mr. Capel's fees.
‘legal prejudice' to the defendant, the district
court normally should grant” a plaintiff's request
for voluntary dismissal after a defendant has answered the
complaint. “The parameters of what
constitutes “legal prejudice” are not entirely
clear” but a district court “should endeavor to
insure substantial justice is accorded to both
circumstances where a plaintiff voluntary dismisses an action
in federal court and intends to refile in another forum,
another federal circuit has held that “there is no
basis” to conclude “that the defendant will be
prejudiced” by declining to condition voluntary
dismissal on the payment of attorney fees and
costs. This is especially true “when
federal discovery will be useable” in the other
circumstances are similar here: Folsom intends to refile the
action in another forum. The work performed to date in the
present action will be useable in any subsequent filing.
Declining to condition Folsom's voluntary dismissal on an
award of fees and costs to Mr. Capel does not constitute
legal prejudice to Mr. Capel. The Motion will be GRANTED and
the case will be dismissed without prejudice.
HEREBY ORDERED THAT the Motion is GRANTED, unconditionally.
Defendant's request that this order be accompanied by an
award of fees and costs is DENIED. This case is DISMISSED,
without prejudice. The clerk is directed to close the case.
 Motion for Voluntary Dismissal Without
Prejudice (“Motion”), docket no. 37, filed June
 Amended Complaint
(“Complaint”), docket no. 30, filed February 23,
 Answer and Defenses of Michael Capel
to Amended Complaint, docket no. 34, filed March ...