Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

H.A. Folsom & Associates, Inc. v. Capel

United States District Court, D. Utah, Central Division

March 29, 2018

H.A. FOLSOM & ASSOCIATES, INC., a Utah corporation d/b/a Folsom Associates, Plaintiff,
v.
MICHAEL CAPEL, an individual, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [37] PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJDUICE

          David Nuffer United States District Judge

         Plaintiff H.A. Folsom & Associates, Inc. (“Folsom”) moved[1] for the voluntary dismissal of his Complaint[2] 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.[3] Folsom argues that granting the dismissal is appropriate because “Mr. Capel would not be prejudiced in any way”[4] by the dismissal.

         Mr. Capel responded by filing a “conditional notice of non-opposition” to the Motion.[5]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.[6] Mr. Capel then requested that the dismissal be conditioned upon Folsom paying for Mr. Capel's legal fees and costs to date.[7] Mr. Folsom replied[8] arguing that the circumstances here do not warrant the payment of Mr. Capel's fees.[9]

         “Absent ‘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.[10] “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 parties.”[11]

         In 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.[12] This is especially true “when federal discovery will be useable” in the other forum.[13]

         The circumstances are similar here: Folsom intends to refile the action in another forum.[14] 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.

         ORDER

         IT IS HEREBY ORDERED THAT the Motion[15] is GRANTED, unconditionally. Defendant's request that this order be accompanied by an award of fees and costs[16] is DENIED. This case is DISMISSED, without prejudice. The clerk is directed to close the case.

---------

Notes:

[1] Motion for Voluntary Dismissal Without Prejudice (“Motion”), docket no. 37, filed June 16, 2017.

[2] Amended Complaint (“Complaint”), docket no. 30, filed February 23, 2017.

[3] Answer and Defenses of Michael Capel to Amended Complaint, docket no. 34, filed March ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.