Vilaylack v. Olivello Transportation LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KETSANA VILAYLACK, )

)

Plaintiff, )

)

v. ) Case No. 4:24-cv-00616-SRC

)

BRENO L. COELHO and OLIVELLO )

TRANSPORTATION LLC, )

)

Defendants. )

Memorandum and Order

Ketsana Vilaylack, Olivello Transportation LLC, and Breno Coelho went off to the races

in November 2023 when Vilaylack sued Olivello and Coelho in state court for damages arising

out of a car accident. Nine months later, Coelho fell out of the race because Vilaylack failed to

timely serve Coelho. Now, over six months later, Vilaylack asks the Court if she can start from

scratch so Coelho can re-join the race. Because Vilaylack has failed to present a proper reason

for dismissal, the Court denies Vilaylack’s request.

I. Background

Vilaylack filed her complaint against Coelho and Olivello in state court in November

2023. Doc. 8. In her complaint, Vilaylack alleged that when Olivello employed Coelho, Coelho

rear-ended Vilaylack with his truck and caused her injury. Id. at ¶¶ 15–17, 24–26, 28. At the

time of removal, Vilaylack hadn’t yet served Coelho. See doc. 1 at ¶ 4. Thus, the Court ordered

Vilaylack to show cause why the Court shouldn’t dismiss Coelho without prejudice for lack of

timely service. Doc. 14. Vilaylack explained that she had diligently attempted to serve Coelho,

and she accordingly asked the Court to extend the deadline to serve him. Doc. 15 at ¶¶ 2, 6, 8.

The Court granted the request and gave Vilaylack six more weeks to serve Coelho. Doc. 17.

When the deadline for serving Coelho came and went, the Court ordered Vilaylack to file

proof of service. Doc. 20. Instead of filing proof of service (or a request to extend the deadline

for service), Vilaylack filed a memorandum in which she conceded that she “effectively cannot

comply with the Court’s order for in-person service” because “Coelho is, apparently, a ghost.”

Doc. 21 at 3.1 Noting that “Vilaylack ha[d] never moved, without prompting, for an extension of

time” and that 262 days had passed since Vilaylack filed her complaint, the Court dismissed

Coelho from the action without prejudice. Doc. 22 at 2–3.

Next, the Court set a Rule 16 conference. Doc. 23. In their Joint Proposed Scheduling

Plan, the parties proposed a December 31, 2024 deadline for joining parties. Doc. 25 at ¶ 2. The

Court conducted the Rule 16 conference, doc. 27, and set several deadlines for the case,

including a November 29, 2024 deadline for motions for joinder of additional parties, see doc. 28

at 1.

In late November 2024, Vilaylack moved to substitute her attorney with another attorney

at the same law firm. Doc. 32. The Court granted the appearance of the new attorney but denied

the withdrawal of the former attorney, subject to refiling by counsel. Doc. 33. The former

attorney moved to withdraw in January 2025, see doc. 38, and the Court promptly granted that

motion, doc. 39. In the interim, a third attorney appeared for Vilaylack. Doc. 34.

In early January 2025, Olivello filed a summary-judgment motion. See doc. 35. About

three weeks after that, Vilaylack moved for dismissal without prejudice under Federal Rule of

Civil Procedure 41(a)(2). See doc. 42.

1 The Court cites to page numbers as assigned by CM/ECF.

II. Standard

After a defendant serves either an answer or a motion for summary judgment, a plaintiff

may voluntarily dismiss an action without the consent of the other parties “only by court order,

on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2); see Fed. R. Civ. P.

41(a)(1)(A). “A decision whether to allow a party to voluntarily dismiss a case rests upon the

sound discretion of the court.” Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 950

(8th Cir. 1999) (citation omitted). “In exercising that discretion, a court should consider factors

such as whether the party has presented a proper explanation for its desire to dismiss, whether a

dismissal would result in a waste of judicial time and effort, and whether a dismissal will

prejudice the defendants.” Id. (citations omitted). “Likewise, a party is not permitted to dismiss

merely to escape an adverse decision nor to seek a more favorable forum.” Id. (citations

omitted).

“The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals [that] unfairly

affect the other side.” Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). Along

those lines, the Eighth Circuit has identified several factors relevant to the prejudice inquiry.

These include, but are not limited to, the defendant’s effort and expense involved in preparing

for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the

action, the fact that the defendant has filed a motion for summary judgment, the emotional and

psychological trauma associated with the experience of defending another lawsuit, and the

prejudice resulting from uncertainty over title to land. Id. at 783.

III. Discussion

A. Whether Vilaylack has presented a proper explanation

Vilaylack argues that dismissing the case without prejudice would allow her to prosecute

her claims against Coelho and Olivello simultaneously. Doc. 42-1 at 2–3. She claims that her

new attorney (unlike her former attorney) is committed to assiduously prosecuting the claim

against Coelho. Id. at 1–2. In other words, Vilaylack wants to dismiss the case so she can refile

her complaint against both Coelho and Olivello. Id. at 2–3. The gaping holes in this explanation

are legion.

First, joining Coelho in this suit doesn’t require dismissal of the whole case—Vilaylack

could move to join Coelho as a defendant in this case. See Fed. R. Civ. P. 20(a)(2) (allowing

parties to be joined as defendants if “any right to relief is asserted against them jointly, severally,

or in the alternative with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences” and “any question of law or fact common to all defendants will arise

in the action”); see also doc. 42-1 at 3 (conceding that the federal rules favor joinder here

because the claims “aris[e] out of a single occurrence”). To be sure, the case-management order

stands in the way. See doc. 28 at 1 (requiring parties to file, no later than November 29, 2024,

“any motions for joinder of additional parties” and explaining that “[t]he Court will only modify

this schedule upon a showing of exceptional circumstances”). But Vilaylack could move for an

extension of the motion-for-joinder deadline. See id.; see also Fed. R. Civ. P. 6(b)(1)(B)

(providing that the Court “may, for good cause, extend” a deadline “on motion made after the

time has expired if the party failed to act because of excusable neglect”). That Vilaylack didn’t

do that—and that she instead seeks to dismiss the entire case—likely means one of two things.

Either (a) Vilaylack doubts that she could show the “exceptional circumstances” and “excusable

neglect” required to amend the case-management order (read: Vilaylack seeks to dismiss the

case “merely to escape an adverse decision” on a potential motion to amend the

case-management order, see Hamm, 187 F.3d at 950) or (b) Vilaylack has a different,

non-articulated reason for seeking dismissal (read: Vilaylack has not “presented a proper

explanation for [her] desire to dismiss,” see id.).

Second, the timeline casts doubt on Vilaylack’s reason for seeking dismissal. The Court

dismissed Coelho from the case over six months ago, after Vilaylack had multiple chances to

serve Coelho. See doc. 22. Ten days later, Vilaylack agreed to a scheduling plan that set a

December 31, 2024 deadline for joining new parties. See doc. 25. Just a few weeks after that,

Vilaylack participated in a Rule 16 conference and saw a case-management order that set a

November 29, 2024 deadline for joining new parties. See docs. 27–28. But Vilaylack still sat on

her hands. She waited months and months—and until after Olivello filed a dispositive motion,

see doc. 35—to vocalize her now-uncompromising desire to pursue her claim against Coelho,

see doc. 42. Given these facts, the Court finds it hard to believe that the desire to pursue the

claim against Coelho, and not the prospect of summary judgment, motivates Vilaylack’s desire

for dismissal.

And it is of no moment that Vilaylack changed her attorney in the middle of these events.

After all, her new attorneys entered their appearances in the case in November and December

2024, still over a month and a half before Vilaylack requested dismissal. See docs. 32–34. And,

in any event, Vilaylack must live with the consequences of her former attorney’s strategic

decisions. See, e.g., Wallace, Saunders, Austin, Brown & Enochs, Chartered v. Rahm, 963

S.W.2d 419, 422 (Mo. Ct. App. 1998) (holding that an attorney acts as his client’s agent). When

the new attorneys agreed to take the case, they took the case as they found it, not as they would

have liked to have found it.

For these reasons, the Court finds that the proper-explanation factor strongly counsels

against dismissing the case.

B. Waste of judicial time and effort

This factor counsels against dismissing the case, too. If Vilaylack gets to start from

scratch, then the Court’s prior orders related to subject-matter jurisdiction, service of process,

case management, and discovery would be for naught. See, e.g., docs. 10, 14, 17, 20, 22, 23, 26,

28. Although the case remains in discovery, the Court has already expended much time and

effort on this case, and to allow Vilaylack to start from scratch would be to force another court

(or this one) to go through many of these motions again.

Vilaylack responds that dismissing the case would serve judicial efficiency because, if

the Court doesn’t dismiss the case, Vilaylack would need to file a separate lawsuit against

Coelho. See doc. 42-1 at 3. Maybe. But given that (1) Vilaylack has squandered multiple

opportunities to serve Coelho and bring him into this case, see docs. 14, 15, 17, 20–22, and (2)

the Court questions whether Vilaylack seriously intends to pursue the claim against Coelho, see

supra § III.A., the Court finds Vilaylack’s line of reasoning speculative at best. More likely,

dismissing the case would waste more judicial resources than allowing it to continue would.

Thus, the waste-of-judicial-time-and-effort factor counsels against dismissing the case.

C. Prejudice to Olivello

“Legal prejudice means ‘something other than the necessity that defendant might face of

defending another action.’” Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 728 (8th Cir.

2014) (quoting Kern v. TXO Prod. Corp., 783 F.2d 968, 970 (8th Cir. 1984)). “The expense and

effort of drafting and responding to discovery prior to dismissal does not constitute legal

prejudice.” Jd. Nor “does the loss of .. . tactical advantage.” Jd.

Here, Olivello would not suffer substantial legal prejudice if the Court dismissed the

case. Although Olivello has filed a motion for summary judgment, see doc. 35, the case remains

in discovery, and relatively early in discovery at that, see doc. 43 at 9 (conceding that the parties

have not yet taken depositions). And although Olivello argues that it would need to rework

discovery and expert materials if the Court allowed Vilaylack to start from scratch, see, e.g., id.,

that fact does not constitute legal prejudice for purposes of Vilaylack’s motion, see Mullen, 770

F.3d at 728.

Thus, the prejudice factor counsels in favor of dismissing the case.

D. Weighing the factors

Weighing the relevant factors, the Court finds dismissal unwarranted at this time.

Although Olivello would not suffer substantial legal prejudice from dismissal, Vilaylack’s failure

to articulate a proper purpose for dismissal strongly counsels against dismissing the case. And

the waste of judicial resources makes dismissal even more unpalatable.

IV. Conclusion

Accordingly, the Court denies Vilaylack’s [42] Motion to Dismiss Without Prejudice.

So ordered this 6th day of March 2025.

su. Ce

STEPHEN R. CLARK

CHIEF UNITED STATES DISTRICT JUDGE