United States District Court, E.D. Wisconsin
KARLA HERNANDEZ, RUBEN ALBANIL, JOSE ALAN HERNANDEZ, GILBERTO GONZALEZ, JESUS FLORES, and ARACELI RODRIGUEZ, Plaintiffs,
CHIPOTLE MEXICAN GRILL, Defendant.
Stadtmueller U.S. District Judge.
filed an amended complaint on June 7, 2016, alleging
violations of the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (Docket #6). Defendant answered the
amended complaint on June 20, 2016. (Docket #12). Currently
before the Court is Plaintiffs' motion for voluntary
dismissal, which they filed on October 10, 2016. (Docket
#16). Defendant filed an opposition on October 19, 2016.
(Docket #17). Pursuant to the Court's Local Rules and the
Federal Rules of Civil Procedure, Plaintiffs' reply in
support of their motion was due to be filed no later than
November 7, 2016. Plaintiffs did not file a reply.
Rule of Civil Procedure 41 governs Plaintiffs' motion for
voluntary dismissal. Because Defendant has answered the
amended complaint, and because Defendant would not consent to
the dismissal, Rule 41 provides that Plaintiffs can only
obtain voluntary dismissal by court order and “on terms
that the court considers proper.” Fed.R.Civ.P.
41(a)(2). In considering whether to grant a motion under Rule
41(a)(2), the court must examine whether the defendant will
suffer undue prejudice from the dismissal. Marlow v.
Winston & Strawn, 19 F.3d 300, 304 (7th Cir. 1994).
Several factors guide this analysis, including
“‘the defendant's effort and expense of
preparation for trial, excessive delay and lack of diligence
on the part of the plaintiff in prosecuting the action,
insufficient explanation for the need to take a dismissal,
and the fact that a motion for summary judgment has been
filed by the defendant.'” See Kunz v.
DeFelice, 538 F.3d 667, 677 (7th Cir. 2008) (quoting
Pace v. S. Express Co., 409 F.2d 331, 334 (7th
Rule 41(a)(2), the court can, in its discretion, impose
conditions on dismissal that are necessary to offset possible
prejudice the defendant may suffer. Marlow, 19 F.3d
at 303; McCall-Bey v. Franzen, 777 F.2d 1178, 1184
(7th Cir. 1985) (noting that conditions may be imposed as a
quid pro quo for obtaining dismissal). One common
condition is requiring the plaintiff to pay the
defendant's reasonable attorney's fees and costs.
Marlow, 19 F.3d at 305. Another permissible
condition is dismissing the matter with prejudice, although
dismissals under Rule 41(a)(2) are normally made without
prejudice. See Fed. R. Civ. P. 41(a)(2);
Marlow, 19 F.3d at 305. The Seventh Circuit has
instructed that the plaintiff must be given a reasonable
opportunity to withdraw the motion for voluntary dismissal if
the court indicates that it will grant the requested
dismissal but only with conditions the plaintiff has not
previously agreed to. Marlow, 19 F.3d at 305.
Court will first assess the Pace factors and then
consider what conditions should be attached to
Plaintiff's requested dismissal. First, although
Defendant complains that it has expended significant effort
in preparing Rule 26(a) disclosures and other discovery
responses, (Docket #17 at 4), this case is still in its early
stages. Defendant makes no showing that it has yet expended a
substantial amount of money and time preparing this case for
trial. Second, Plaintiffs appear to have been dilatory in
their approach to this litigation. Defendant asserts, and
Plaintiffs have not contested, that the only activity
Plaintiffs have undertaken required little effort in the way
of propounding or responding to discovery. See id.
Plaintiffs offer no explanation whatsoever of the need for
dismissal, stating only that “Plaintiffs desire to
dismiss the case.” (Docket #16 at 1). In an email to
Defendant's counsel, Plaintiffs indicated their desire to
refile this matter in state court as a class action. (Docket
#17-8). Defendant believes the dismissal is also an attempt
to avoid this Court's stringent trial scheduling order.
(Docket #17 at 4). Without crediting Defendant's views
regarding Plaintiffs' strategic outlook, the Court
nevertheless finds that Plaintiffs have given little reason
why dismissal is warranted. Finally, no summary judgment
motion has been filed, so it does not appear that Plaintiffs
are trying to avoid an adverse merits determination in
seeking voluntary dismissal.
of the Pace factors reveals that while dismissal is
not inappropriate given the early stage of these proceedings,
Defendant may suffer a measure of unfair prejudice in having
to defend a similar lawsuit to be filed in state court in the
near future. In order to mitigate this potential prejudice,
the Court will award Defendant its costs and reasonable
attorney's fees as a condition of dismissal. However,
Defendant cannot be reimbursed for expenses for items that
will be useful in subsequent litigation, including a possible
state-court class action involving these plaintiffs.
2010-1 SFG Venture LLC v. EP Milwaukee,
LLC, No. 10-C-1079, 2011 WL 4431745, at *6 (E.D. Wis.
Sept. 22, 2011) (citing Woodzicka v. Artifex
Limited, 25 F.Supp.2d 930, 934 (E.D. Wis. 1998)). Thus,
counsel's time expended in answering the complaint and
preparing basic discovery disclosures should not be
compensated, since this sort of work would be useful in later
litigation of these issues. See id.; Cauley v.
Wilson, 754 F.2d 769, 772-73 (7th Cir. 1985). By
contrast, time spent on removal proceedings should be
compensated because it will be of no use in any subsequent
action. Applying these principles to the time records
Defendant submitted in connection with their opposition, the
Court finds that Defendant should be awarded $1, 055 in fees
and $844 in costs. See (Docket
with settled precedent in this area, the Court will afford
Plaintiffs an opportunity to accept the condition the Court
intends to impose on their dismissal. See 2010-1 SFG
Venture LLC, 2011 WL 4431745, at *6 (citing 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 2d § 2366). Plaintiffs must file a
notice within seven days of the date of this order informing
the Court whether they will accept the proposed condition or
not. If Plaintiffs do not accept the condition, their motion
for dismissal will be denied and they will be required to
continue litigating this matter consistent with the schedule
already put in place by the Court. If Plaintiffs do accept
the condition, or if they fail to file the required notice,
the Court's dismissal order, including the condition
requiring payment of fees and costs, will become effective
without further order of the Court.
IT IS ORDERED that Plaintiffs shall file a notice no later
than December 9, 2016 indicating whether they will accept the
Court's conditions of dismissal described above; and
FURTHER ORDERED that in the event Plaintiffs' notice
indicates that they accept the Court's proposed condition
of dismissal, or Plaintiffs do not file the required notice
by the deadline stated above, the following orders will take
ORDERED that Plaintiffs' motion to dismiss this action
without prejudice (Docket #16) be and the same is hereby
GRANTED in part and DENIED in part;
FURTHER ORDERED that this action be and is hereby DISMISSED
without prejudice; and
FURTHER ORDERED that as a condition of dismissal, Plaintiffs
shall pay Defendant a total of $1, 899.00, which represents
Defendant's compensable attorney's fees and costs,