United States District Court, E.D. Wisconsin
VICTORIA CAVADIAS, Individually and as the Personal Representative of the Estate of Larry Wendt, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, SOO LINE RAILROAD COMPANY, CANADIAN PACIFIC RAILWAY, and WISCONSIN CENTRAL LTD, Defendants.
Stadtmueller U.S. District Judge
September 13, 2017, after Defendants Union Pacific Railroad
Company (“Union Pacific”) and Wisconsin Central
Limited (“Wisconsin Central”) had each filed a
motion for summary judgment, see (Docket #35 and
#38), Plaintiff filed a motion for voluntary dismissal of
this entire action without prejudice. (Docket #42). She
indicates that because she has not yet been appointed
executrix to the estate of the original plaintiff, Larry
Wendt (“Wendt”), she does not have standing to
prosecute this case. (Docket #43 at 2).
Defendants except for Wisconsin Central consent to dismissal
without prejudice. (Docket #42 at 1-2). Wisconsin Central
filed an opposition to Plaintiff's motion, stating that
it prefers dismissal with prejudice “because [Wisconsin
Central] is not a proper defendant.” (Docket #44 at 1).
Wisconsin's Central argues that it has expended time and
resources defending itself in this litigation and does not
want to start anew defending itself in a later-filed lawsuit
on the same claim, which it believes is meritless.
Id. at 1-3.
Rule of Civil Procedure 41(a)(2) provides that, after service
of an answer or motion for summary judgment, an action
“may be dismissed at the plaintiff's request only
by court order, on terms that the court considers
proper.” Fed.R.Civ.P. 41(a)(2). The district court
enjoys wide discretion in considering Rule 41 motions, and
the plaintiff bears the burden of persuasion. See Tolle
v. Carroll Touch, Inc., 23 F.3d 174, 177 (7th Cir. 1994)
(citing F.D.I.C. v. Knostman, 966 F.2d 1133, 1142
(7th Cir. 1992)).
Seventh Circuit instructs that courts should not grant
dismissal without prejudice if the defendant would suffer
“plain legal prejudice” as a result. Kovalic
v. DEC Int'l, Inc., 855 F.2d 471, 473 (7th Cir.
1988). The Court considers four factors in determining
whether a defendant would suffer plain legal prejudice: (1)
the defendant's effort and expense of preparation for
trial; (2) whether there has been excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action, (3) the sufficiency of the plaintiff's
explanation for the need to take a dismissal, and (4) whether
the defendant has filed a motion for summary judgment.
Knostman, 966 F.2d at 1142. The Court need not
resolve every factor in favor of the moving party to dismiss
without prejudice. Kovalic, 855 F.2d at 471.
second and third factors weigh in Plaintiff's favor. As
to the second factor, Plaintiff has not delayed excessively
in bringing her motion to dismiss. This case was filed by the
now-deceased former plaintiff, Wendt, on January 18, 2017.
Wendt died on February 12, 2017, and on April 11, 2017,
Plaintiff filed an amended complaint, taking Wendt's
position as the plaintiff. See (Docket #20 at 1 and
#24). Plaintiff's motion to voluntarily dismiss was filed
five months later, on September 13, 2017, shortly after two
Defendants filed motions for summary judgment. (Docket #42).
While Defendants (and the Court) might have preferred that
Plaintiff moved to dismiss before any dispositive motions
were filed, the Court cannot say that a period of five months
between the time when Plaintiff was substituted into the case
and when she moved to dismiss because she lacks standing,
during which time Plaintiff mistakenly believed she did have
proper standing, see (Docket #42 at 2), is
the third factor, Plaintiff's reason for dismissal, that
she does not have standing to prosecute this action at this
time, is sufficient; in fact, none of the Defendants contest
Plaintiff's reason for dismissal. Without a proper
plaintiff, the case cannot proceed. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992) (Standing is an
“indispensable part of the plaintiff's
first and fourth factors present a closer question, but
ultimately do not preclude dismissal without prejudice.
Wisconsin Central may well have expended considerable time
and resources compiling its motion for summary judgment, but
the Court has no way to measure that expenditure because
Wisconsin Central has not apprised the Court of its efforts.
Further, much of the effort and expense Wisconsin Central
used to compile its summary judgment motion could likely be
directed toward another similar motion in a subsequent case,
should Plaintiff choose to refile.
Wisconsin Central's argument for dismissal with prejudice
centers on its belief that Plaintiff cannot prove a claim
against it under the Federal Employers' Liability Act
(“FELA”); Wisconsin Central does not want to
litigate that issue in a subsequent case. (Docket #44 at
1-2). But the prospect of a second lawsuit on the same facts
and claim does not constitute plain legal prejudice
sufficient to require denial of a plaintiff's motion to
dismiss without prejudice. Quad/Graphics, Inc. v.
Fass, 724 F.2d 1230, 1233 (7th Cir. 1983). Wisconsin
Central's liability under FELA is an issue for a later
case, should Plaintiff decide to bring one.
IT IS ORDERED that Plaintiff's motion to
voluntarily dismiss without prejudice (Docket #42) be and the
same is hereby GRANTED;
IS FURTHER ORDERED that Defendant Union Pacific
Railroad Company's motion for summary judgment (Docket
#35) be and the same is hereby DENIED as
IS FURTHER ORDERED that Defendant Wisconsin Central
Limited's motion for summary judgment (Docket #38) be and
the same is hereby DENIED as moot; and
IS FURTHER ORDERED that this action be and the same