# Setty v. Village of Russellville

> District Court, S.D. Ohio · March 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10379871

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10379871

## How later opinions describe it (automated extraction)

- finding clear legal prejudice because the defendant “would be stripped of” the “absolute defense” of the statute of limitations

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

PHILLIP SETTY,

Plaintiff,
Case No. 1:20-cv-476
v. JUDGE DOUGLAS R. COLE

VILLAGE OF RUSSELLVILLE, et al.,

Defendants.
OPINION AND ORDER
This cause comes before the Court on Plaintiff Phillip Setty’s Motion to Dismiss
Without Prejudice Pursuant to Rule 41(a)(2) (Doc. 14). For the reasons discussed
more fully below, the Court GRANTS Setty’s Motion (Doc. 14), and accordingly
DISMISSES his First Amended Complaint (Doc. 7) WITHOUT PREJUDICE. As a
result, the Court also DENIES AS MOOT Defendants Village of Russellville and
Marcus Callahan’s Partial Motion to Dismiss (Doc. 10).
BACKGROUND
In late 2018, Phillip Setty alleges that he, based on a good faith belief that
criminal activity was about to occur, reported a “possible criminal situation” to a
police officer in Brown County. (First Am. Compl. (“FAC”), Doc. 7, #230–311). This
“possible criminal situation” somehow involved the wife of Defendant Marcus
Callahan, who was at that time serving as the Police Chief of the Village of

1 Refers to PAGEID #.
Russellville. (Id.). According to Setty, this report upset Callahan, who then allegedly
used his position as Police Chief to retaliate against Setty. (Id. at #231).
This retaliation took the form of “statements accusing [Setty] of criminal

conduct,” which Callahan allegedly “published” in late 2018 or early 2019. (Id.). On
February 26, 2019, Callahan and the Village initiated a criminal prosecution against
Setty, charging Setty with felony vandalism under an Ohio statute. (Id.). However,
Defendants dismissed the charge two weeks later, before grand jury indictment and
“without any finding of probable cause.” (Id.).
Again, sometime in late 2018 or early 2019, Setty alleges that Callahan
“published statements accusing [Setty] of criminal conduct.” (Id.). This allegedly

precipitated another criminal prosecution, initiated on April 2, 2019, this time for
criminal damaging or endangering. (Id. at #232). This charge was likewise dismissed
six months later. (Id.).
On November 25, 2019, the Defendants initiated another criminal proceeding,
this time against Setty and his wife, for “animals running at large.” (Id.). Setty alleges
that this prosecution, like the other two, was baseless. Defendants dismissed the

charges against Setty and his wife on March 3, 2020. (Id.).
Setty alleges that he suffered harm from the statements published by Callahan
and from the prosecutions initiated by the Defendants. As a result, Setty filed a six-
count Complaint in the Brown County Court of Common Pleas on January 30, 2020,
asserting claims for malicious prosecution, intentional or reckless infliction of
emotional distress, defamation, and abuse of process. (See Compl., Doc. 2, #144, 146–
51). After Defendants answered (see Amended Answers, Docs. 5 and 6), Setty filed an
amended ten-count complaint (the operative complaint) in the same court on June
10, 2020. (See FAC, Doc. 7). In his amended Complaint, Setty asserts claims for

malicious prosecution (Counts One, Two, and Six), intentional infliction of emotional
distress (Count Three), defamation (Counts Four and Five), inadequate training
(Count Seven), First Amendment retaliation (Count 8), violations of 42 U.S.C. § 1983
(Count Nine), and violations of various provisions of the Ohio Constitution (Count
Ten). (Id. at #233–40).
Defendants removed the action to this Court on June 17, 2020. (Notice of
Removal, Doc. 1). One month later, Defendants moved to dismiss (see Doc. 10) most

of Setty’s First Amended Complaint (Doc. 7) for failure to state a claim, except for the
First Amendment claim (Count Eight) and the § 1983 claim (Count Nine) to the
extent it asserts a § 1983 claim based on the deprivation of Setty’s First Amendment
rights. Setty responded in opposition (Doc. 11), and Defendants replied in support
(Doc. 12).
Before the Court ruled on the Defendants’ Motion to Dismiss (Doc. 10), Setty

filed the instant Motion (Doc. 14), requesting dismissal of his First Amended
Complaint (Doc. 7) without prejudice. Defendants responded in opposition (Doc. 15)
on February 18, 2022. Setty failed to reply, and the matter is now before the Court.
LAW AND ANALYIS
Setty moves to dismiss under Fed. R. Civ. P. 41(a)(2), which provides that, after
an answer has been served or motion for summary judgment has been filed, an action
may be dismissed without prejudice at the plaintiff’s request “only by court order, on

terms that the court considers proper.”2 See Fed. R. Civ. P. 41(a)(1)–(2). In requiring
a court’s order, Rule 41(a)(2) aims “to protect the nonmovant from unfair treatment.”
Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994) (citing
Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176, 177 (5th Cir. 1990)). Although
the decision to grant such a motion lies within the discretion of the trial judge, the
Sixth Circuit has held that an abuse of discretion may be found where dismissal

without prejudice would cause the defendant “plain legal prejudice.” Id.
In their Opposition, Defendants argue that Sixth Circuit precedent requires
denial of Setty’s motion because granting it would cause them plain legal prejudice
and therefore represent an abuse of discretion. They further argue in the alternative
that, if the Court grants Setty’s motion, the Court should also award Defendants their
legal costs.

2 Defendants filed their respective Amended Answers (Doc. 5; Doc. 6) to Setty’s original
Complaint (Doc. 2) on March 18, 2020, in the Brown County Court of Common Pleas. But
that is not the operative Complaint. (See FAC, Doc. 7). Defendants did not serve an answer
to nor move for summary judgment on Setty’s First Amended Complaint (Doc. 7). Thus, Setty
might have argued that he could dismiss the action simply by filing a notice of dismissal
under Fed. R. Civ. P. 41(a)(1). However, Setty made no such argument, and the Court deems
it waived. Moreover, allowing such a procedural maneuver would contradict the defendant-
protection purpose of Rule 41. See also Wright v. Standard Ins. Co., No. 807-CV-1586, 2008
WL 5070228, at *6 (M.D. Fla. Nov. 24, 2008) (noting persuasive precedent that concludes
that “the service of an amended complaint does not revive the right to voluntarily dismiss an
action”).
A. Granting Setty’s Motion Will Not Cause Defendants Plain Legal
Prejudice.
Defendants first argue that granting Setty’s motion to dismiss the action
without prejudice would result in plain legal prejudice to Defendants. The Sixth
Circuit has articulated four factors to guide the determination of whether a voluntary
dismissal will cause the defendant plain legal prejudice: (1) the amount of effort and
expense the defendant has incurred in trial preparation; (2) any excessive delay and
lack of diligence on the part of the plaintiff; (3) the sufficiency of plaintiff’s

explanation for the need to dismiss; and (4) whether a defendant has filed a motion
for summary judgment. Id.
However, “[t]hese factors are only a guide,” and the “trial judge ultimately
retains discretion to grant the motion to dismiss.” Malibu Media, LLC v. Ricupero,
705 F. App’x 402, 407 (6th Cir. 2017) (citing Rosenthal v. Bridgestone/Firestone, Inc.,
217 F. App’x 498, 502 (6th Cir. 2007)). That is, the Court need not resolve every factor

in Setty’s favor to find that dismissal without prejudice is warranted. Rosenthal, 217
F. App’x at 502. Moreover, merely facing the prospect of a subsequent, related lawsuit
does not establish “plain legal prejudice.” See Bridgeport Music, Inc. v. Universal-
MCA Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009) (citing Grover, 33 F.3d at
718). Defendants argue that each of the Grover factors weigh in favor of denying
Setty’s motions, and the Court will consider those arguments in turn.

With respect to the first factor, Defendants argue that they have “invested
substantial time, effort, and expense in defending this action,” including by filing
their notice of removal, partial motion to dismiss and related briefing, and answers.
(Opp’n, Doc. 15, #303). And they support that characterization with an affidavit that
avers over $27,000 in “legal fees and expenses,” approximately $8,500 of which
Defendants claim will not be useful in a subsequent action. (Id. at #303–04). The

Court recognizes that Defendants have, naturally, expended significant time, effort,
and money in defending this action. While this factor weighs slightly in favor of
Defendants, the magnitude of these expenditures alone does not mandate denial of
Setty’s motion. See B & J Mfg. Co. v. D.A. Frost Indus., Inc., 106 F.R.D. 351, 353 (N.D.
Ohio 1985) (citing Louis v. Bache Grp., Inc., 92 F.R.D. 459, 461 (S.D.N.Y. 1981).
With respect to the second factor, Defendants point to the nineteen-month
lapse between the filing of their Fed. R. Civ. P. 12(b)(6) motion to dismiss (Doc. 10)

and the instant motion. (Opp’n, Doc. 15, # 304). But, while asserting that the second
factor thus “favors Defendants,” they fail to offer any explanation of how the
intervening months evince excessive delay or lack of diligence on behalf of Setty. To
be sure, Setty could have filed his motion sooner; but a plaintiff might be forgiven, at
least to some extent, for failing to file a dispositive motion while another is already
pending before the Court. This delay cannot be attributed solely to Setty and, even if

it could, cannot be considered entirely unreasonable.
More importantly, Defendants do not suggest that the delay in itself has
caused prejudice, for example, because of the advanced stage of the litigation. On the
contrary, it does not appear that the action advanced in any manner since
Defendants’ motion became ripe in August 2020. So far as the Court can tell, no paper
discovery has been served and no depositions have been scheduled nor taken; indeed,
no calendar order was ever entered. Thus, the Court cannot conclude that the
nineteen-month lapse alone—without any concomitant development of the case—
caused additional “legal harm” to Defendants. See Malibu Media, 705 F. App’x at 408

(second factor weighed in favor of plaintiff even where plaintiff brought its Rule 41
motion after discovery had occurred, very close to the dispositive motion deadline,
and where plaintiff was on notice that defendant intended to file a summary
judgment motion). This factor weighs in Setty’s favor.
At the third factor, Defendants take issue with Setty’s failure to explain the
basis of his request with more specificity. (Opp’n, Doc. 15, #304). And the Court agrees
that his reasoning is somewhat vague: Setty cites as grounds for his motion “the time

that has lapsed since [Defendants’] Motion to Dismiss was filed,” coupled with
“various aspects of the case that have developed, including availability of possible
witnesses.” (Mot., Doc. 14, #300). To be sure, the availability of witnesses and other
evidence is a reasonable consideration in determining the propriety of continuing the
litigation. However, the Court notes that this consideration does not seem to support
a request for dismissal without prejudice. On the contrary, it seems unlikely that

witnesses and other evidence will become any more available should the matter be
dismissed and then re-filed. Thus, this factor weighs slightly in favor of Defendants.
The fourth Grover factor asks whether the defendant has filed a motion for
summary judgment. Defendants concede they have not done so, and this factor, as
traditionally formulated, thus weighs in favor of Setty. However, Defendants also
point to an additional consideration: the pendency of their Motion to Dismiss (Doc.
10). Defendants argue that Setty failed to “substantively oppose” portions of their
Motion to Dismiss, and that their (partially) unopposed motion would have in turn
guaranteed a result in their favor. (Opp’n, Doc. 15, #305). Thus, according to

Defendants, granting dismissal without prejudice in the face of their motion would
cause plain legal prejudice.
Defendants correctly note that a motion for voluntary dismissal filed at the
point when the law “clearly dictates” a result in the defendant’s favor is more likely
to cause plain legal prejudice. Smith v. Holston Medical Group, P.C., 595 F. App’x
474, 477–78 (6th Cir. 2014); see also Rosenthal, 217 F. App’x at 500 (“Courts readily
find plain legal prejudice where dismissal results in stripping a defendant of an

absolute defense.”). “Where a defense is still available in the second action,” though,
“courts are less likely to find plain legal prejudice.” Malibu Media, 705 F. App’x at
409 (citing Rosenthal, 217 F. App’x at 501).
For example, in Smith, the Sixth Circuit affirmed a finding of plain legal
prejudice to the defendant where, at the time the plaintiff filed her Rule 41 motion,
the plaintiff lacked a qualified medical expert, the disclosure deadline for expert

testimony had “long-since expired,” and the plaintiff could not prove her claim
without such expert testimony. Smith, 595 F. App’x 474, 477–78. As things stood,
then, plaintiff was destined to lose. Moreover, the plaintiff expressly predicated her
Rule 41 motion to dismiss without prejudice on a desire to secure an expert competent
to testify. Id. at 476. Thus, if the motion to dismiss without prejudice were granted,
the defendant would have had its certain victory snatched away, only to face the
possibility of failure in a subsequent suit.
Here, granting Setty’s motion at this stage in the proceedings would cause no

such prejudice to Defendants. Even if Defendants are correct that statutory immunity
clearly dictates a result in their favor on Setty’s tort claims against the Village,
nothing would prevent Defendants from asserting the same defense in a subsequently
filed action. See Cogent Sols. Grp., LLC v. Brown, No. 2:12-CV-665, 2013 WL 6116052,
at *8 (S.D. Ohio Nov. 20, 2013). “This, then, differs from Grover and the cases Grover
cites, where the ‘clearly dictated’ factor applied.” Id. (citing Grover, 33 F.3d at 717–
19). Courts are more concerned about prejudice to the defendant where dismissal will

result in the loss of a defense, opening defendant to the possibility of liability in a
subsequent suit that did not exist at the time of the first suit. See Phillips v. Illinois
Cent. Gulf R.R., 874 F.2d 984, 987 (5th Cir. 1989) (finding clear legal prejudice
because the defendant “would be stripped of” the “absolute defense” of the statute of
limitations); Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984) (“If defendant
has already won its case, reimbursement of fees and expenses cannot make it whole

from the injury of being sued again, perhaps this time to lose.”) (emphasis added).
Given that Defendants could simply assert the same legal theory in a
subsequent suit, the “prejudice” they seek to avoid looks more akin to the simple
threat of a second lawsuit—a threat that is “not enough to show that [Defendants]
will suffer legal prejudice from dismissal.” Malibu Media, 705 F. App’x at 409 (citing
Grover, 33 F.3d at 718). As such, the additional consideration of Defendants’ pending
Motion to Dismiss (Doc. 10) does not convince the Court that Defendants will suffer
plain legal prejudice if it grants Setty’s motion.
Having weighed the foregoing factors, the Court concludes that Defendants

will not suffer “plain legal prejudice” as articulated by the Sixth Circuit should the
Court grant Setty’s Motion to Dismiss his First Amended Complaint (Doc. 7) without
prejudice. Defendants may perceive that outcome as unfair, and may suffer the
prospect of a subsequent lawsuit, but these considerations alone do not constitute the
type of harm that mandates denial of Setty’s motion. The Court thus GRANTS
Setty’s Motion to Dismiss Without Prejudice Pursuant to Rule 41(a)(2) (Doc. 14).

B. The Court Declines To Award Defendants Their Legal Fees And Costs
As A Condition Of Dismissal.
Defendants argue in the alternative that the Court should award Defendants
their legal fees and costs. (Opp’n, Doc. 15, #305). To be sure, the Court may, under
Rule 41(a)(2), impose conditions on dismissal such as “the payment of costs incurred
by a defendant.” Bridgeport, 583 F.3d at 954. Like the decision to dismiss under Rule
41(a)(2) itself, the decision to award attorney fees and costs as a condition of that
dismissal is discretionary. DWG Corp. v. Granada Invs., Inc., 962 F.2d 1201, 1202
(6th Cir. 1992). And courts exercise this discretion quite frequently. See Wallace v.
Wheeling Pittsburgh Steel Corp., No. 2:06-CV-610, 2007 WL 1795950, at *4 (S.D. Ohio

June 20, 2007) (stating that imposition of costs on the plaintiff is “usually considered
necessary” in Rule 41(a)(2) context) (quoting Puerto Rico Mar. Shipping Auth. v.
Leith, 668 F.2d 46, 51 (1st Cir. 1981)).
Despite the frequency of the practice, though, the Sixth Circuit “has expressly
rejected the contention that the payment of defense costs is universally required for
voluntary dismissal under Rule 41(a)(2).” Bridgeport, 583 F.3d at 954; see also

Waldman v. Pitcher, No. 1:10-cv-238, 2011 WL 4337046, at *2 (S.D. Ohio June 21,
2011) (“Rule 41(a)(2) is not a fee-shifting statute such that attorney fees are
automatically awarded.”) (internal quotations omitted), report and recommendation
adopted, Waldman v. Pitcher, No. 1:10CV238, 2011 WL 4344987, at *1 (S.D. Ohio
Sept. 15, 2011). Indeed, even the court in Wallace, a case Defendants cite for the
notion that fee shifting is “usually considered necessary,” declined to impose it as a
condition of dismissal in that case. Wallace, 2007 WL 1795950, at *5.

Rather than awarding fees as a matter of course, courts have considered a
variety of factors in determining whether an award is appropriate. These include:
(1) whether the plaintiff brought and prosecuted the action in good faith; (2) whether
the defendant incurred substantial expenses in defending the action, for example,
because of the advanced stage of the proceedings or the nature of the litigation;
(3) whether the plaintiff delayed in bringing the motion to dismiss; and (4) whether

the work performed can be used in a subsequently filed action. See Dowling v. Select
Portfolio Servicing, Inc., No. 05-CV-00049, 2007 WL 2815567, at *4 (S.D. Ohio Sept.
25, 2007) (citations omitted).
In view of these factors, the Court declines to impose fees and costs on Setty as
a condition of dismissal. First, Defendants have not suggested that Setty brought the
action in bad faith, nor that he delayed the litigation for the purposes of harassing
Defendants or driving up costs. And the Court sees no evidence to support this notion,
either. Second, although Defendants have averred substantial costs in defending the
action, those costs cannot be attributed to either the advanced stage of the litigation

or the particular nature of the case. As noted above, it does not appear that any
discovery occurred or that the litigation proceeded while the Defendants’ Motion to
Dismiss—which was filed less than a month after removal—was pending. Third, and
relatedly, the Court sees no evidence that any delay on Setty’s part imposed
additional costs on Defendants. Thus, although Setty certainly could have filed his
motion sooner, the delay does not weigh heavily in favor of imposing Defendants’ costs
on him. Fourth, while Defendants aver that approximately $8,500 of their legal fees

and costs would be wasted in a subsequent action, (Opp’n, Doc. 15, #303–04), they
neglect to explain why that is so. Rather, Defendants simply note that this subset of
their costs arose from drafting the notice of removal, answers, and motion briefing.
(Id.). But the Court fails to see how the documents Defendants cite, or at least the
legal research underpinning those documents, could not be at least substantially
repurposed in a subsequent suit based on the same facts and same law. Setty “should

not have to reimburse Defendants for work that is likely to be repurposed in related
litigation.” Luckey v. Butler Cnty., No. 1:05CV388, 2006 WL 91592, at *4 (S.D. Ohio
Jan. 13, 2006) (citations omitted).
In sum, the Court sees no basis for departing from the traditional American
Rule on attorney’s fees, and therefore declines to impose Defendants’ legal fees and
costs on Setty as a condition of dismissal.?

CONCLUSION
For the foregoing reasons, the Court GRANTS Setty’s Motion (Doc. 14),
DISMISSES his First Amended Complaint (Doc. 7) WITHOUT PREJUDICE, and
DENIES AS MOOT Defendants’ Partial Motion to Dismiss (Doc. 10). The Court
further DIRECTS the Clerk to TERMINATE this case on the Court’s docket.
SO ORDERED.

March 28, 2022
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

3 The Court also notes that, should Setty seek to refile this case in federal court, the question
of costs could be revisited under Fed. R. Civ. P. 41(d). That Rule provides that, “[i]f a plaintiff
who previously dismissed an action in any court files an action based on or including the
same claim against the same defendant, the court: (1) may order the plaintiff to pay all or
part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff
has complied.”
138

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10379871. Public record. Not legal advice.