Stewart v. Gabriel Brothers, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

KELLY STEWART, )

)

Plaintiff, )

)

v. ) No. 3:23-CV-346-JEM

)

GABRIEL BROTHERS, INC., )

d/b/a Gabe’s, )

)

Defendant. )

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry

of judgment [Doc. 9].

This matter is before the Court on Plaintiff’s Notice of Voluntary Dismissal [Doc. 28],

which seeks dismissal of her case without prejudice. Defendant responded in opposition [Doc. 30],

and Plaintiff filed a reply [Doc. 34]. Plaintiff’s request is ripe for adjudication. See E.D. Tenn. L.R.

7.1(a). For the reasons explained below, the Court CONDITIONALLY GRANTS Plaintiff’s

Notice of Voluntary Dismissal [Doc. 28], pending Plaintiff’s acceptance of the conditions below.

I. BACKGROUND

On May 30, 2023, Plaintiff filed this action in the Circuit Court for Sevier County,

Tennessee [Doc. 1-2]. A few months later, on September 22, 2023, Defendant removed the case to

this Court [Doc. 1]. The parties attended a telephonic scheduling conference on February 20, 2024,

and the Court entered a Scheduling Order on the same day setting the trial for March 25, 2025

[Doc. 17].

On May 9, 2024, the parties participated in an informal discovery dispute conference with

the Court relating to Plaintiff’s overdue discovery responses, wherein the Court ordered her to

produce completed responses on or before June 6, 2024 [Doc. 18]. When Plaintiff did not produce

completed responses, Defendant moved to dismiss [Doc. 20]. The Court denied that motion in light

of Plaintiff’s representation that she provided the discovery that she had in her possession and that

she was working on obtaining her missing billing and medical records [Doc. 22 pp. 2–4].

Later, on September 19, 2024, the parties filed a joint motion to continue the deadlines by

180 days [Doc. 23]. The parties explained that Plaintiff was still seeking treatment for her injuries,

making the discovery deadline of October 22, 2024, premature [Id. ¶ 3]. In addition, the parties

represented that on September 10, 2024, Plaintiff’s attorney, Adrienne Ogle, was appointed as the

Circuit Court Judge for the Fourth Judicial District, and that she and her partner, Attorney Travis

McCarter, had only 180 days to wind up her practice [Id. ¶ 4]. Plaintiff stated, “[She] believes that

an extension of 180 days as to the trial date and applicable discovery deadlines will allow her to

complete treatment and participate in meaningful discovery in this matter. Such an extension will

also give Plaintiff’s counsel time to wrap up any necessary administrative matters concerning

Ms. Ogle’s judicial appointment and properly prepare this matter to move forward” [Id. ¶ 5].

Defendant agreed with the proposed continuance [Id. ¶ 6]. On the following day, on September 27,

2024, the Court granted the motion and entered an Amended Scheduling Order [Doc. 25]. Under

the Amended Scheduling Order, Plaintiff’s expert disclosures were due on February 11, 2025, the

discovery deadline is April 22, 2025, and trial is set for September 23, 2025 [Id. at 1–2].

On February 10, 2025, Plaintiff filed a motion seeking an extension of her expert disclosure

deadline, citing to her continued medical treatment, her husband’s medical issues, and her

counsel’s transition to a new law firm [Doc. 26 pp. 1–2] On March 4, 2025, the Court denied this

motion [Doc. 29].

Less than an hour before the Court entered the order denying that motion, Plaintiff filed

the Notice of Voluntary Dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure

[Doc. 28]. She states that she “filed this matter in order to satisfy Tennessee’s one-year statute of

limitations,” although she had not completed treatment for her injuries [Id. ¶ 1]. According to

Plaintiff, her “treatment and medical condition [have] substantially interfered with [her] ability to

meet and confer with counsel and meet the applicable deadlines” [Id.]. She submits that her

husband has been hospitalized, “which further impeded her ability to progress her case” and that

Plaintiff is also tending to her mother, who is “hospitalized and is [in] intensive care” [Id. ¶ 2].

Plaintiff states that Defendant has not filed a counter-claim, nor moved for summary judgment;

she “has never previously nonsuited this matter in state or federal court[;]” and she “wishes to

voluntarily dismiss this action in order to be able to focus on personal matters” [Id. ¶¶ 3–5].

Defendant responds in opposition to Plaintiff’s request [Doc. 30]. It outlines the procedural

history of this case [Id. at 1–3]. Defendant asks that the Court deny Plaintiff’s request or dismiss

the matter with prejudice [Id. at 3]. Defendant asserts that the relevant factors weigh in favor of

dismissing the case with prejudice [Id. at 4–7]. “In the alternative,” Defendant states, “any

dismissal without prejudice should be with certain conditions” [Id. at 7]. In support of Defendant’s

response, it filed excerpts from Plaintiff’s deposition [Doc. 30-1] and its Rule 30(b)(6) witness’s

deposition [Doc. 30-2] and the Affidavit of Allan J. Parker, Esq., its counsel [Doc. 30-3]. Two days

after filing its opposition, Defendant moved for summary judgment [Doc. 31].

Plaintiff filed a reply, stating that she “take[s] issue with” how Defendant has characterized

her discovery efforts [Doc. 34 p. 1]. She outlines the parties’ discovery efforts and accuses

Defendant of failing to meet certain discovery obligations [Id. at 1–2]. Plaintiff states that she “has

a multitude of reasons for requesting a voluntary dismissal without prejudice[,]” which includes

her health condition and her family’s medical emergencies [Id. at 2]. According to Plaintiff, she

“also seeks permission to file a voluntary nonsuit for strategic reasons[,]” including her counsel’s

decision to close his firm due to the inability to manage a heavy case load [Id. at 3]. The relevant

factors, Plaintiff argues, weighs in favor of dismissing this case without prejudice [Id. at 4–8].

Plaintiff acknowledges that the Court may impose conditions if it dismisses the case without

prejudice [Id. at 8]. In support of her reply brief, she filed the Declaration of Affidavit of Travis

D. McCarter [Doc. 34-1].

I. ANALYSIS

Given that Plaintiff filed her notice after Defendant filed its Answer, and the parties have

not stipulated to dismissing this case, Rule 41(a)(2) of the Federal Rules of Civil Procedure governs

Plaintiff’s request. See Fed. R. Civ. P. 41(a)(2). It states, “[A]n action may be dismissed at the

plaintiff’s request only by court order, on terms that the court considers proper.” Id. “The primary

purpose of the rule in interposing the requirement of court approval is to protect the nonmovant

from unfair treatment.” Grover by Grover v. Eli Lilly & Co. (“Grover”), 33 F.3d 716, 718

(6th Cir. 1994) (citation omitted). If the Court determines that the defendant will suffer “plain legal

prejudice,” then dismissal should be with prejudice. Id. (citations omitted).

The Sixth Circuit has recognized several factors a court should consider in determining

whether the defendant will suffer plain legal prejudice: (1) “the defendant’s effort and expense of

preparation for trial,” (2) “excessive delay and lack of diligence on the part of the plaintiff in

prosecuting the action,” (3) insufficient explanation for the need to take a dismissal,” and

(4) “whether a motion for summary judgment has been filed by the defendant.” Id. (citation

omitted) (“Grover factors”). But these “factors are neither exhaustive nor conclusive.” Walther v.

Fla. Tile, Inc., 776 F. App’x 310, 315 (6th Cir. 2019) (citation omitted). Instead, they “are only a

guide[.]” Malibu Media, LLC v. [Redacted], 705 F. App’x 402, 407 (6th Cir. 2017) (citation

omitted). Ultimately, the Court has discretion on dismissing the matter with or without prejudice.

Grover, 33 F.3d at 718 (citation omitted). “The nonmovant carries the burden of establishing that

a dismissal under Rule 41(a)(2) without prejudice will result in plain legal prejudice.” New York

Life Ins. Co. v. Robinette, No. 2:21-CV-179, 2024 WL 2947711, at *2 (E.D. Tenn. June 11, 2024)

(citation omitted).

For the reasons stated below, the Court finds that Defendant has not established its burden

to show that a dismissal under Rule 41(a)(2) without prejudice will result in plain legal prejudice.

But to the extent Plaintiff would like to proceed with her request to dismiss this case without

prejudice, the Court will impose conditions it considers proper under Rule 41(a)(2).

A. Grover Factors

Starting with the first Grover factor, Defendant’s efforts and expense of preparing for trial,

Defendant argues that it took “comprehensive efforts . . . to prepare this case for trial” [Doc. 30

p. 4]. For instance, Defendant asserts:

It investigated the incident, removed the case to federal court, filed

an Answer, issued discovery to the Plaintiff, reviewed and evaluated

2,292 pages of medical records for the Plaintiff, researched case law

on the issues at hand, deposed the Plaintiff, defended the deposition

of its corporate representative, filed a motion to dismiss, and

retained and paid for an expert witness to review Plaintiff’s

voluminous medical records and provide opinions.

[Id.]. The Court acknowledges that Defendant has expended time and effort in defending this

action. But Plaintiff states that “everything the Defendant has expended time and effort on in this

matter has been preserved and would be preserved [if] a second lawsuit [is] filed” [Doc. 34 p. 6].

See Rosenthal v. Bridgestone/Firestone, Inc., 217 F. App’x 498, 502 (6th Cir. 2007) (affirming the

district court’s decision to grant the motion to dismiss without prejudice based in part on the fact

that “discovery would largely be transferrable” to the subsequent action); King v. Chase,

No. 219CV02658, 2020 WL 8838089, at *2 (W.D. Tenn. Aug. 19, 2020) (“Most, if not all, of the

discovery conducted by the [p]arties can be used in any future litigation.” (citations omitted));

Yandell Constr. Servs., Inc. v. LMR Constr., LLC, No. 1:17-cv-01307, 2018 WL 4375112, at *3

(W.D. Tenn. Sept. 13, 2018) (“Although the Court notes that conducting over two years of litigation

results in no small expense, much of the effort put forth in the discovery phase of this case could

presumably be used in any future suit brought by Plaintiff against the two Defendants.” (citations

omitted)); Cogent Sols. Grp., LLC v. Brown, No. 2:12-CV-665, 2013 WL 6116052, at *6

(S.D. Ohio Nov. 20, 2013) (“A final point ‘cuts against a finding of plain legal prejudice’—‘it

appears that much of the effort and expense devoted to this case would be useful in a subsequently

filed action.’” (quoting Wills v. Honda of Am. Mfg., Inc., No. 2:11–CV–717, 2012 WL 1203567,

at *2 (S.D. Ohio April 10, 2012))). The first factor therefore weighs in favor of dismissing this

action without prejudice.

The second factor considers Plaintiff’s excessive delay and lack of diligence in prosecuting

this action. Defendant argues that “this factor should weigh[] heavy on the Court’s decision”

[Doc. 30 p. 5]. Defendant outlines the history of this case, noting that Plaintiff failed to timely

respond to discovery, failed to produce photographs, and failed to properly disclose her expert

witness [Id. at 5–6]. Plaintiff disputes Defendant’s characterization of her discovery efforts and

notes that she “had requested certain records multiple times and was waiting receipt of those

records before she could provide them to Defendant” [Doc. 34 p. 1]. Further, she asserts that she

executed an authorization allowing Defendant access to her records on May 9, 2024 [Id.]. She

accuses Defendant of not meeting its discovery obligation [Id. at 2].

While there have been some delays on Plaintiff’s part [see Docs. 18, 22, 23 & 26], “[t]he

appropriate test under this prong is not whether there was some delay or lack of diligence; rather,

the dilatory behavior must have been ‘excessive.’” PGT Trucking, Inc. v. Jones, No. 15-1032,

2015 WL 4094265, at *6 (W.D. Tenn. July 7, 2015) (quoting Grover, 33 F.3d at 718). Based on

the record, the Court does not find that this factor supports dismissing the case with prejudice.

See Harrell Biomet Orthopedics, LLC, No. 13-CV-2293 2015 WL 11117733, at *3 (W.D. Tenn.

Feb. 25, 2015) (“The [c]ourt finds that [c]ounsel’s failure to adhere to the [c]ourt’s [s]cheduling

[o]rder in this case unfortunate. However, there has not been a showing of excessive delay and

lack of diligence on [the p]laintiff’s part in prosecuting his case.”).

Turning to the third factor, Plaintiff’s explanation for the need to dismiss, she seeks

dismissal given that her “treatment and medical condition substantially interfere with [her] ability

to meet and confer with counsel” and her family’s medical issues [Doc. 28 ¶¶ 1–2]. Defendant

states that this explanation is not sufficient [Doc. 30 p. 4]. It argues that Plaintiff has not made any

showing to comply with her expert disclosure deadline of February 11, 2025, and Plaintiff’s

counsel stated in August 2024 that he had possession of her complete medical records [Id. at 4–5].

Defendant asserts that Plaintiff has not sufficiently explained why her husband and her mother’s

condition “have impeded her ability to retain expert witnesses’ opinions[,]” and while she claims

she needs to dismiss this case to focus on personal matters, “[t]he only remaining deadline which

would actually require Plaintiff’s physical participation prior to trial would be mediation”

[Id. at 5].

“Parties seeking dismissal without prejudice are not required to give an exact or detailed

reasoning for their actions so long as there is some logical justification.” Pence v. TMNO

Healthcare, LLC, No. 13-1199, 2013 WL 5550862, at *5 (W.D. Tenn. Oct. 8, 2013) (citations

omitted). Following Defendant’s response, Plaintiff’s counsel filed an affidavit that provides more

details about Plaintiff’s health and the health of her family members [Doc. 34-1 ¶¶ 4(a)–(d)].

In addition, Plaintiff’s counsel explains that after his law partner left the firm, he was left with a

heavy caseload, which he realized was unmanageable [Id. ¶ 5].1 He has decided to close his firm,

and he has accepted employment elsewhere [Id. ¶ 6]. According to Attorney McCarter, “[t]hese

circumstances have impacted [his] ability to progress this case and meet applicable deadlines and

cutoffs imposed by the Court and Federal Rules of Civil Procedure” [Id. ¶ 7].

Considering Attorney McCarter’s explanation, coupled with Plaintiff’s health condition

and her personal matters, the Court finds this factor weighs in favor of dismissing this case without

prejudice. Dalton v. State Farm Ins. Co., No. 1:22-CV-01102, 2023 WL 3135667, at *2

(W.D. Tenn. Apr. 27, 2023) (“Counsel explained in the course of the status conferences that he had

taken over dozens of cases from another attorney and was finding it difficult to stay abreast of all

of the discovery matters presented by his new caseload. All of this is perhaps another way of saying

that [the p]laintiff’s ‘cost-benefit analysis of pursuing further litigation’ justified his need for a

nonsuit.” (citation omitted)); Crim v. Golden, No. 3:19-CV-00284, 2020 WL 4883012, at *3

(M.D. Tenn. July 31, 2020) (finding that the third factor weighed in the plaintiff’s favor, in part,

because his affidavit explained that his request is “based on his serious health conditions”), report

1 While Plaintiff did not provide this explanation in her motion, the Court notes that it is not

new [See Docs. 23 and 26].

and recommendation adopted, No. 3:19-CV-00284, 2020 WL 4819531 (M.D. Tenn.

Aug. 19, 2020).

The final factor considers whether a motion for summary judgment is pending. Defendant

argues that this factor weighs in its favor because the parties took depositions on February 18,

2025, and following receipt of the transcripts, its counsel began drafting the motion for summary

judgment and the statement of undisputed facts on March 3, 2025 [Doc. 30 p. 7; Doc. 30-3 ¶ 4].

On March 7, 2025, Defendant filed its Motion for Summary Judgment and related filings

[Docs. 32, 33, 33]. But Plaintiff had requested dismissal three days before Defendant moved for

summary judgment, and Defendant filed its dispositive motion two months early [See Doc. 25

p. 1]. See Harrell, 2015 WL 11117733, at *5 (finding the fourth factor weighed in favor of

dismissing the case without prejudice because defendant filed its motion for summary judgment

after plaintiff requested a dismissal). Although Defendant invested some resources in its motion

prior to filing it, this factor “is not dispositive[,]” Walther, 776 F. App’x at 316 (citation and

footnote omitted), and “this work product could be used in a later suit should Plaintiff re-file [her]

Complaint,” Oliver v. FCA US LLC, No. 19-CV-11738, 2021 WL 1614398, at *2 (E.D. Mich.

Apr. 26, 2021) (citations omitted); see also Rosenthal, 217 F. App’x at 502 (“We do not find any

legal error in the district court’s rejection of defendants’ assertion that the pending summary

judgment motion precluded the court from granting the motion to dismiss.”). Under the

circumstances, the Court does not find that Defendant’s pending Motion for Summary Judgment

mandates entering a dismissal with prejudice.

After considering the Grover factors, and in an exercise of its discretion, the Court finds

dismissing this case without prejudice is appropriate.

B. Conditions

To the extent the Court dismisses the case without prejudice, Defendant states that certain

conditions should be imposed, including that the Court (1) allow it “to file and be heard on its

Motion for Summary Judgment prior to entry of an [o]rder of [v]oluntary dismissal,” (2) “the

matter be refiled in federal court and that the discovery deadlines set forth in the Amended

Scheduling be enforced and not extended or re-opened upon refiling by the Plaintiff[,]”

(3) “Defendant be awarded its costs, expenses, and fees in defending this matter[,]” and (4)

“Plaintiff’s deadline for disclosure of expert witnesses be enforced (as expired) and not reopened”

[Doc. 30 pp. 7–8].

Plaintiff acknowledges “that the Court has the discretion and authority to impose

conditions” [Doc. 34 p. 8]. But she argues the conditions “should not preclude [her] from retaining

and disclosing an expert should Plaintiff re-file her matter after an opportunity to consider the

strategic benefit of the same” [Id.]

“Rule 41(a)(2)’s language permits the Court to ‘condition’ the grant of the motion on the

acceptance of terms it finds appropriate.” PGT Trucking, Inc., 2015 WL 4094265, at *7 (citation

omitted). The purpose of conditions is “to offset the prejudice the defendant may suffer from a

dismissal without prejudice.” Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc.,

583 F.3d 948, 954 (6th Cir. 2009) (citations omitted).

Starting with Defendant’s request for “its costs, expenses, and fees in defending this

matter” [Doc. 30 p. 8], “[d]istrict courts may require plaintiffs to pay the defendant’s litigation

costs and fees.” King, 2020 WL 8838089, at *4 (citation omitted). Courts generally find the

following factors helpful in determining whether an award is appropriate:

(1) whether the plaintiff acted in good faith in bringing and

prosecuting the litigation; (2) whether the defendant incurred

substantial expenses in defending the action; (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.

Can IV Packard Square, LLC v. Schubiner, 768 F. App’x 308, 312 (6th Cir. 2019). “[T]he Sixth

Circuit ‘has expressly rejected the contention that the payment of defense costs is universally

required for voluntary dismissal under Rule 41(a)(2).’” Brashier v. Manorhouse Mgmt., Inc.,

No. 3:20-CV-294, 2021 WL 965913, at *4 (E.D. Tenn. Mar. 15, 2021) (quoting Bridgeport Music,

Inc., 583 F.3d at 954).

The Court will not impose an award of costs, expenses, or fees. There is no evidence to

suggest that Plaintiff did not act in good faith in bringing and prosecuting the litigation. Defendant

incurred expenses in this case, but it may use any discovery it took in any subsequent action, which

Plaintiff has acknowledged. See id. at *4 (“Often, such fees and expenses are appropriate when

refiling suit would risk duplicative fees and expenses.” (citation omitted)); King,

2020 WL 8838089, at *4 (“All discovery in this case can be used in any subsequent action, thereby

reducing the costs imposed on Defendants if Plaintiff refiles her action.” (citation omitted)); Ball

v. TVA., No. 2:13-CV-904, 2015 WL 556437, at *6 (S.D. Ohio Feb. 10, 2015) (“Further, there is

no dispute that the discovery collected in this litigation can be applied to a state action. Taking

those factors altogether, this Court does not find that awarding attorneys’ fees and costs is

warranted as a condition of dismissal.”). While Plaintiff filed her motion near the end of the

discovery phase, the Court does not find this delay warrants granting fees in light of the other

considerations.

Another condition Defendant proposes is that it “be heard on its Motion for Summary

Judgment, prior to entry of an [o]rder of voluntary dismissal” [Doc. 30 p. 7]. Defendant does not

provide any authority supporting this request [See id.]. And given that no party has argued that

Defendant’s motion cannot be addressed in a subsequent action, see Rosenthal,

217 F. App’x at 501 (“Where a defense is still available in the second action, courts are less likely

to find plain legal prejudice.” (citations omitted)), the Court declines to impose this condition.

Defendant also requests that the Court require Plaintiff to refile her action in federal court

to the extent she wishes to proceed with her lawsuit in the future. “The Court may have the

authority to impose this condition[.]” King, 2020 WL 8838089, at *5 (citing Scholl v. Felmont Oil

Corp., 327 F.2d 697, 699 (6th Cir. 1964)); see also Seaton v. Black & Decker (U.S.), Inc.,

No. 2:20-CV-124, 2021 WL 1739822, at *3 (E.D. Tenn. May 3, 2021) (granting the plaintiff’s

request to dismiss without prejudice upon the condition that she refile her action in the Eastern

District of Tennessee). But this “condition is ‘rare’ and should not be used frequently.” King,

2020 WL 8838089, at *5 (quoting Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 298 n.24

(5th Cir. 2016)). Defendant has not explained why this particular filing restriction should be

imposed here, and therefore, the Court declines to impose this condition.

But some conditions are appropriate. This case is almost two years old, and the parties have

exchanged discovery and deposed each other. If Plaintiff refiles her case, all deadlines that have

elapsed at the time of Plaintiff’s request, March 4, 2025, must be honored, and the parties shall use

discovery in this case in any future litigation. See King, 2020 WL 8838089, at *5 (imposing the

same conditions). Plaintiff states that a dismissal without prejudice “should not preclude [her] from

retaining and disclosing an expert should [she] re-file her matter” [Doc. 34 p. 8]. But this deadline

had already expired when Plaintiff filed her request, and the Court denied her request for an

extension [Doc. 29]. Reopening this deadline if Plaintiff chooses to refile this action would result

in prejudice to Defendant.

Plaintiff shall have until April 2, 2025, to accept these conditions or withdraw her motion.

See Kienitz v. Metro. Life Ins. Co., 131 F.R.D. 106, 107 (E.D. Mich. 1990) (“Following imposition

of any conditions, plaintiffs are thereafter afforded an opportunity to withdraw the request for

voluntary dismissal.”’).

Il. CONCLUSION

For the reasons set forth above, the Court CONDITIONALLY GRANTS Plaintiff’s

Notice of Voluntary Dismissal [Doc. 28], pending Plaintiff's acceptance of the conditions above.

IT IS SO ORDERED.

ENTER:

MILE. McCook

United States Magistrate Judge

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