# Ray v. Riverport Apartments LLC

> District Court, N.D. Oklahoma · August 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10386462

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** August 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

SAMANTHA RAY AND BILLY TYLER RAY, )
)
Plaintiffs, )
)
v. )
) Case No. 19-CV-195-TCK-JFJ
RIVERPORT APARTMENTS, LLC, )
a domestic limited liability company, )
SAEED SHAWN AZARRAFIY, as an )
Individual and as Owner of Riverport )
Apartments, LLC, MARIE MULLINS, as )
an individual and as acting landlord. )
)
Defendants. )

OPINION AND ORDER
Before the Court is the Motion to Dismiss filed by plaintiffs Samantha Ray and Billy Tyler
Ray. Doc. 29. Defendants Riverport Apartments, LLC, Saeed Shawn Azarrafiy and Marie Mullins
object to the motion. Doc. 30.
I. Background/Status

On March 11, 2019, Samantha and Billy Tyler Ray sued defendants Riverport Apartments,
LLC (“Riverport”), Saeed Shawn Azarrafiy (“Azarrafiy”), and Marie Mullins (“Mullins”) in
Rogers County, Oklahoma District Court. Doc. 2-2. In their lawsuit, they asserted the following
claims related to an apartment they rented from Riverport:
• violation of the Oklahoma Residential Landlord & Tenant Act (“ORLTA”)
• the Fair Housing Act (“FHA”)
• breach or rescission of contract
• negligence.
Id.
On April 10, 2019, Defendants Riverport and Mullins removed the case to this Court based
on 28 U.S.C. §1331 (federal question jurisdiction as to the FHA claim). Doc. 2. Subsequently,
Riverport, Mullins and Azarrafiy filed Motions to Dismiss Samantha Ray’s claims pursuant to
Fed. R. Civ. P. 12(b)(6), on the basis that she was not a party to the apartment rental agreement.

Docs. 11-12, 22.
On April 1, 2020, Plaintiffs filed the pending Motion to Dismiss this action without
prejudice pursuant to Fed. R. Civ. P. 41(a)(2). Doc. 29. In their motion, they state that in the course
of investigating their claims, numerous other tenants came forward to make similar claims against
the named defendants, and ultimately 12 other plaintiffs filed suit in Rogers County District Court,
Case No. CJ-2019-459. Id. at 1-2. Plaintiffs assert that Defendants will have suffered no prejudice
from the dismissal; the Plaintiffs have not caused any delay or shown a lack of diligence in the
prosecution of their claims; and discovery has commenced in the Rogers County case. Id. at 2-5.
Defendants object to Plaintiffs’ motion, arguing that the Court should rule on their pending
Motions to Dismiss with prejudice before considering Plaintiffs’ Motion to Dismiss without

prejudice. Doc. 30.
II. Applicable Law
Under Rule 41(a)(1), a plaintiff may dismiss an action without a court order if they do so
before an answer or motion for summary judgment has been filed or if all parties stipulate to the
dismissal. Fed. R. Civ. P. 41(a)(1). If neither of those conditions are met, dismissal is permitted
only “by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Court
approval is required to “prevent voluntary dismissals which unfairly affect the other side.” Brown
v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005) (quoting Phillips USA, Inc. v. Allflex USA, Inc.,
77 F.3d 354, 357 (10th Cir. 1996)). Granting a voluntary dismissal is within the court’s discretion.
See id. (citing Am. Nat'l Bank & Trust Co. of Sapulpa v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir.
1991)).
Here, Defendant Riverportfiled an answer in the case on April 17, 2019. Doc. 10.
Accordingly, Rule 41(a)(2) applies, and court approval of the proposed dismissal is required.

Voluntary dismissals under Rule 41(a)(2) should normally be granted, provided there is no
legal prejudice to defendants. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
“Prejudice does not arise simply because a second action has been or may be filed against the
defendant, which is often the whole point in dismissing a case without prejudice.” Brown, 413
F.3d at 1124 (citing Am. Nat'l Bank & Trust Co., 931 F.2d at 1412). Nor does prejudice arise
because of “the possibility that plaintiffs may gain a tactical advantage by refiling in state court.”
Am. Nat'l Bank & Trust Co., 931 F.2d at 1412.
The Court must examine the following four factors in determining legal prejudice: “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 a dismissal; and the present stage

of litigation.” Ohlander, 114 F.3d at 1137 (citing Phillips U.S.A., Inc., 77 F.3d at 358). Not all
factors need be resolved in favor of either party for dismissal or denial of the motion to be
appropriate. Id. To ensure that “substantial justice is accorded to both parties,” the Court must
consider the “equities not only facing the defendant, but also those facing the plaintiff.” Brown,
413 F.3d at 1124. In determining legal prejudice, only factors involving the parties are relevant,
not the court’s time or effort. Ohlander, 114 F.3d at 1137.
III. Analysis
A. Opposing Party’s Effort and Expense
Defendants contend that they expended “considerable expense and resources” to prepare
and file their Motions to Dismiss with Prejudice in this case. However, no scheduling order has

been entered, defendant Azarrafiy has not filed an answer, and it appears that no discovery has
been conducted to date. Defendants will still be free to pursue dismissal of Plaintiffs’ claims in
state court. Moreover, plaintiffs in the Rogers County case have dropped the federal FHA claim,
and Plaintiffs in this case represent they will do so as well. This factor weighs in favor of dismissal
without prejudice.
B. Excessive Delay and/or Lack of Diligence
Regarding the second factor, Plaintiffs contend—and Defendants do not contest—that they
have not delayed or lacked diligence, have responded promptly to Defendants’ filings, and filed
their Motion to Dismiss in this Court less than one month after a scheduling order was entered in
the Rogers County case. Doc. 29; CJ-2019-459 in Rogers County. They assert that, in contrast,

Defendants have “dodged Plaintiff’s process server, refused to cooperate in discovery in the
Rogers County case, and refused to turn over insurance information until Plaintiff’s counsel
pointed out this Court’s local rule requiring it.” Doc. 29. The second factor weighs in favor of
Plaintiffs’ request for dismissal without prejudice.
C. Explanation of Need for Dismissal
The third factor focuses on whether the plaintiffs have presented a sufficient explanation
for the need for dismissal. Plaintiffs contend the dismissal will serve judicial economy by allowing
this case and the Rogers County case to be tried together, as the cases involve the same defendants
and similar conduct, facts, and damages. Plaintiffs also claim that settlement will be impossible if
these two cases remain separated, because any settlement would have to be consented to by all
plaintiffs in separate actions, which would require a settlement conference or mediation that
includes all parties. The Court concludes that the third factor weighs in Plaintiffs’ favor.
D. Present Stage of Litigation

Finally, the fourth factor—the present stage of litigation—favors Plaintiffs’ motion for
dismissal without prejudice. This case is in the early stages. To date, no scheduling order has
been entered, nor has any discovery taken place. And while Defendants have filed dispositive
motions with respect to Plaintiffs’ other claims, those motions can still be pursued in the Rogers
County case.
IV. Conclusion
Having determined that the four factors identified in Ohlander favor Plaintiffs’ position,
the Court hereby grants the Motion to Dismiss. Doc. 29. This case is dismissed without prejudice.
ENTERED this 12th day of August, 2020.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386462. Public record. Not legal advice.