United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL WITHOUT
N. Parrish District Judge
matter comes before the court on Plaintiff Scott
Eckersley's Motion for Voluntary Dismissal filed on
October 19, 2018. (ECF No 19). Defendants Wasatch County,
McKay King, Case Wade, and Jeff Winterton opposed that motion
on October 26, 2018. (ECF No 21). For the reasons below, Mr.
Eckersley's motion is granted.
Eckersley initiated this action in Utah state court in August
of 2017, but he did not effect service on the defendants
until January of 2018. On January 17, 2018, defendants
removed the case to this court on the basis of federal
question jurisdiction. Plaintiff failed to appear at the
initial pretrial conference for this matter, and he also
neglected to provide his initial disclosures to the
defendants. On September 28, 2018, defendants filed a Motion
for Judgment on the Pleadings, or in the Alternative, to
Dismiss for Failure to Prosecute. (ECF No. 15). Mr. Eckersley
did not file a response, and on October 26, 2018, he filed
this motion for voluntary dismissal.
Rule 41(a)(2) of the Federal Rules of Civil Procedure, a
plaintiff may voluntarily dismiss an action to which a
defendant has responded only upon order of the court. The
purpose of the court-order requirement is “primarily to
prevent voluntary dismissals which unfairly affect the other
side, and to permit the imposition of curative
conditions.” Clark v. Tansy, 13 F.3d 1407,
1411 (10th Cir. 1993). “Absent ‘legal
prejudice' to the defendant, the district court normally
should grant such a dismissal.” Ohlander v.
Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
relevant to a finding of legal prejudice include: “the
opposing party's effort and expense in preparing for
trial; excessive delay and lack of diligence on the part of
the movant; insufficient explanation of the need for
dismissal; and the present stage of litigation.”
Id. These non-exhaustive factors need not all point
in one direction; the overriding aim is to “insure
[that] substantial justice is accorded to both
parties.” Id. “A court, therefore, must
consider the equities not only facing the defendant, but also
those facing the plaintiff[.]” Id.
Eckersley represents that a series of family tragedies in the
months following the initiation of this lawsuit have made
prosecution of his action impracticable at this time. His
brother and father were both diagnosed with cancer, each of
his grandmothers passed away over this past summer, and his
brother-in-law suffered a fatal motorcycle accident in
September. Following his brother's diagnosis of
pancreatic cancer, Mr. Eckersley moved into his brother's
home to assist with the care of his six children. His
father's cancer similarly requires his assistance.
Finally, he states that he intends to litigate this case-and
to retain counsel for that purpose-when his circumstances are
more accommodative of the demands that would entail.
pointing to Mr. Eckersley's failure to diligently
prosecute this action over the preceding ten months-including
a failure to attend the initial pretrial conference-suggest
that his motion ought to be denied, and that the court should
resolve their pending motion for judgment on the pleadings.
Upon review of the factors that guide a voluntary dismissal,
the court disagrees.
as to the defendants' “effort and expense in
preparing for trial, ” this case is in a very
preliminary stage. Although it is true that the defendants
have expended time and energy in filing an answer to the
complaint as well as a motion for judgment on the pleadings,
the court does not find their efforts to be substantial
enough for this factor to weigh in their favor. If and when
Mr. Eckersley returns to litigate this action, the defendants
will have their judgment on the pleadings ready to file-which
consists principally of legal arguments-and Mr. Eckersley
will have counsel to advance his most persuasive arguments in
response. The court finds that this factor is neutral.
Mr. Eckersley has presented extenuating circumstances to
account for his “delay and lack of diligence” in
prosecuting this action. The court finds that those same
circumstances are an adequate “explanation of the need
for a dismissal.” Accordingly, these two factors weigh
in favor of granting the voluntary dismissal.
“the present stage of litigation” weighs strongly
in favor of granting voluntary dismissal. This case was
removed to this court in January of 2018. Mr. Eckersley is
not seeking dismissal on the eve of trial or even after
having conducted extensive discovery. Although the court does
not take lightly the litigation effort expended by the
defendants, this action is plainly in an incipient stage.
the court does not find that dismissal of this action without
prejudice would result in “legal prejudice” to
the defendants. For this reason, and with an eye toward
“insur[ing that] substantial justice is accorded to
both parties[, ]” Mr. Eckersley's motion for