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D.C.G. v. Wilson Area School District

March 25, 2009


The opinion of the court was delivered by: Golden, J.


This lawsuit arises out of alleged sexual abuse engaged in by Walter Palmer, a teacher, against Plaintiff E.M.G., a minor female child, while E.M.G. was enrolled at Philip F. Lauer Middle School in Easton, Pennsylvania during the 2003-2004 school year. E.M.G.'s parents, Plaintiffs D.C.G. and P.J.G., brought this lawsuit against the Wilson Area School District, Superintendent Doug Wagner, and Principal Dennis Harper (collectively, "Defendants") on behalf of E.M.G. for violations of her constitutional right to bodily integrity pursuant to 42 U.S.C. § 1983.*fn1 Superintendent Doug Wagner and Principal Dennis Harper are sued in their official and individual capacities.*fn2 Plaintiffs further assert, as an independent basis of liability, that a "special custodial relationship" existed between E.M.G. and Defendants under the Due Process Clause, thereby imposing an affirmative duty on Defendants to protect E.M.G. (Compl. ¶ 29, 36, 43).

Defendants have moved for summary judgment, claiming that (a) Plaintiffs have failed to state a cause of action under 42 U.S.C. § 1983, (b) Plaintiffs have failed to state a cause of action under the "special custodial relationship" theory, (c) the doctrine of qualified immunity entitles Superintendent Doug Wagner and Principal Dennis Harper to immunity from liability, and (d) Plaintiffs have failed to state a claim for punitive damages. (Doc. No. 35). Approximately nine months after Defendants filed their motion for summary judgment, Plaintiffs filed a notice requesting that the Clerk of Court withdraw Plaintiffs' Complaint without prejudice, which the Court will construe as a Motion for Voluntary Dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure. (Doc. No. 61). Defendants oppose Plaintiffs' request for voluntary dismissal. After careful consideration of the briefs submitted by the parties, Plaintiffs' Motion for Voluntary Dismissal under Rule 41(a)(2) is denied and Defendants' motion for summary judgment is granted.*fn3


During the events giving rise to this lawsuit, minor Plaintiff E.M.G. was twelve years old and a seventh-grade student at Philip F. Lauer Middle School-a school located within the Borough of Wilson and operated by the Wilson Area School District ("WASD" or "School District"). (Compl. ¶ 13). E.M.G. was assigned to the homeroom and English classes of Third-Party Defendant Walter Palmer ("Palmer" or "Third-Party Defendant") during the 2003-2004 school year. (Id. ¶¶ 12, 14). During this school year, Plaintiffs allege that Palmer sexually abused E.M.G. during several incidents, which occurred over a five-month time period. It is alleged that, between October 2003 and February 2004, Palmer (a) touched E.M.G.'s shoulders and neck and played with her hair, (b) held and rubbed E.M.G.'s hands in an inappropriate manner, (c) continually complimented E.M.G. on her physical appearance, (d) made comments to E.M.G. that she should be on medication; (e) asked E.M.G. if she "slept around with guys," (f) looked down E.M.G.'s blouse after she was removed from gym class by Palmer to take down a Christmas tree, (g) wrote the word "NOT" on an index card and physically taped the index card to E.M.G.'s chest while she was wearing a shirt that bore the word "PERFECT," and (h) cupped E.M.G's breasts. (Id. ¶¶ 15-20; Pls.' Stmt. of Facts ¶ 11; E.M.G. Dep. at. 22-48; Pls.' Ex. 16). The last incident is alleged to have occurred on February 6, 2004. (Compl. ¶ 20).

On February 9, 2004, E.M.G. reported these incidents to non-party Raymond Post ("Post"), a Vice Principal at Philip F. Lauer Middle School. (Id. ¶ 21; Defs.' Stmt. of Facts ¶ 8). Also on February 9, other female students lodged complaints against Palmer. (Defs.' Stmt. of Facts ¶ 12). Prior to E.M.G.'s complaint to school officials, she had not told anyone about these alleged incidents, not even her parents. (Id. ¶ 9). WASD immediately began a preliminary investigation. (Id. ¶ 11). E.M.G. and the other students were instructed to write down their complaints, and Post then took the written complaints to Defendant Principal Dennis Harper ("Harper"). (Id. ¶¶ 14-15; Pls.' Ex. 16). That same day, Harper interviewed E.M.G. and three other students as part of the preliminary investigation. (Defs.' Stmt. of Facts ¶¶ 18-19).

On February 10, 2004, additional students were interviewed. (Id. ¶ 20). That morning, Harper and a Wilson Area Education Association ("WAEA") representative met with Palmer. During this meeting, Harper and the WAEA representative notified Palmer that several girls had filed complaints of inappropriate behavior against Palmer, and that an investigation into his actions would be conducted. (Id. ¶ 21). Palmer was instructed during this meeting that he was being immediately placed on paid administrative leave. (Id.). On February 19, 2004, an investigator interviewed E.M.G. and other complaining female students. (Id. ¶ 22). On March 1, 2004, School District officials, including Defendant Superintendent Doug Wagner ("Wagner"), met with Palmer, and the officials informed him that he would be placed on suspension without pay as of March 2, 2004. (Id. ¶ 23; Pls.' Stmt. of Facts ¶ 23; Defs.' Ex. 5). On March 2, 2004, Wagner sent Palmer a letter memorializing what was discussed during the meeting. (Defs.' Ex. 5). On March 3, 2004, the School District provided Palmer with written notice of its decision to suspend Palmer without pay, with the possibility of termination of employment after a hearing before the WASD Board. (Defs.' Ex. 6; Pls.' Stmt. of Facts ¶ 23). Palmer then filed a grievance, and the matter proceeded to arbitration on the question of whether Palmer should be terminated. (Pls.' Stmt. of Facts ¶ 25). On May 16, 2006, after four hearings, an arbitrator reinstated Palmer with back pay and benefits. (Defs.' Ex. 12).

WASD has an "Unlawful Harassment" policy. This policy is in the Student Handbook, which is distributed to students at the beginning of every school year. (Harper Dep. at 9). This "Unlawful Harassment" policy states that "complaints of harassment shall be investigated promptly and corrective action be taken when allegations are substantiated." (Defs.' Ex. 11, at 34).


On February 3, 2009, while Defendants' summary judgment motion (Doc. No. 35) was pending, Plaintiffs filed with the Clerk of Court a "Praecipe" asking the Clerk to "[k]indly withdraw the Plaintiffs' Complaint without prejudice" in this action. (Doc. No. 61). As Plaintiffs' request was neither stipulated to by all the parties nor made before Defendants served either an answer or a motion for summary judgment, Plaintiffs cannot voluntarily dismiss their case in the absence of a court order. Fed. R. Civ. P. 41(a). The Court will therefore construe Plaintiffs' "Praecipe" as a motion for voluntary dismissal without prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure. See Morris v. City of Hobart, 39 F.3d 1105, 1109 (10th Cir. 1994) ("Rule 41(a)(2) does not require that the plaintiff's request for dismissal take any specific form; it requires only that the court approve such a request for dismissal."), cert. denied, 514 U.S. 1109 (1995); Bangor Baptist Church v. Maine, 92 F.R.D. 123, 124-25 (D. Me. 1981) ("The notice of dismissal is to be treated as a motion for dismissal under Rule 41(a)(2).").

Rule 41(a)(2) states that, "[e]xcept as provided in Rule 41(a)(1), 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) (emphasis added). Unless the court order states otherwise, a dismissal under Rule 41(a)(2) is without prejudice. Id. "A voluntary dismissal without prejudice is not a matter of right." Connor v. Corporate Life Consultants, No. 06-2831, 2006 WL 2828865, at *1 (E.D. Pa. Sept. 29, 2006). Rather, "[a] motion for voluntary dismissal under Fed. R. Civ. P. 41(a)(2) lies within the sound discretion of the district court." Citizens Sav. Ass'n v. Franciscus, 120 F.R.D. 22, 24 (M.D. Pa. 1988) (citing Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir. 1974)); see also Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d 46, 51-52 (1st Cir. 1981) ("A district judge does not abuse his discretion in granting a motion to dismiss without first holding a hearing if he is familiar with the relevant issues . . . and if the defendants have adequate notice and opportunity to be heard on the plaintiff's motion to dismiss.").

Though motions for voluntary dismissal under Rule 41(a)(2) should generally be granted, in ruling on such a motion, "a court must examine the prejudice to the defendant, both in terms of legal prejudice and litigation expense." See Dodge-Regupol, Inc. v. RB Rubber Prods., Inc., 585 F. Supp. 2d 645, 652-53 (M.D. Pa. 2008) (citing Schandelmeier v. Otis Div. of Baker-Material Handling Corp., 143 F.R.D. 102, 102-03 (W.D. Pa. 1992)); see also In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990) ("Rule 41 motions should be allowed unless defendant will suffer some prejudice other than the mere prospect of a second lawsuit.") (internal quotations omitted), cert. denied, 499 U.S. 961 (1991); Ferguson, 492 F.2d at 28-29; United States v. Eighteen Various Firearms, 148 F.R.D. 530, 531 (E.D. Pa. 1993); Buse v. Vanguard Group of Inv. Cos., No. 91-3560, 1994 WL 111359, at *3 (E.D. Pa. Mar. 31, 1994) (stating that the court "must consider the legitimate interests of both parties"). The prejudice must be substantial and "the prospect of a subsequent lawsuit is not sufficient to deny a motion without prejudice." Connor, 2006 WL 2828865, at *1; see also Peltz v. Sears, Roebuck & Co., 367 F. Supp. 2d 711, 715 (E.D. Pa. 2005). Relevant factors in this analysis include the following: (1) whether the expense of a second litigation would be excessive and duplicative; (2) how much effort and expense Defendants expended in preparing for trial; (3) the extent to which the case has progressed; (4) Plaintiffs' diligence and explanation in bringing the motion to dismiss; and (5) whether the dismissal is designed to evade federal jurisdiction and frustrate the removal statute's purpose. See Connor, 2006 WL 2828865, at *1; see also Dodge-Regupol, 585 F. Supp. 2d at 652; Pappas v. Township of Galloway, 565 F. Supp. 2d 581, 594 (D.N.J. 2008); Peltz, 367 F. Supp. 2d at 715; Schandelmeier, 143 F.R.D. at 102-03; Citizens Sav., 120 F.R.D. at 25. Whether a dispositive motion is pending by the non-moving party is also a factor to be considered. See Dodge-Regupol, 585 F. Supp. 2d at 652; Schandelmeier, 143 F.R.D. at 103.

An examination of these factors demonstrates that Defendants would be substantially prejudiced if the Court were to grant Plaintiffs' request for voluntary dismissal without prejudice. If the Court were to dismiss this matter without prejudice, Defendants would be subject to a second lawsuit until minor Plaintiff E.M.G. turns twenty years of age, which is three years away. (Pls.' Rule 41 Br. at 4). Notwithstanding the prospect of a second lawsuit, Defendants have incurred significant effort and expense litigating this matter, including the drafting of a motion for summary judgment which was opposed by Plaintiffs. Defendants have also filed a motion in limine (Doc. No. 59) and the April 27, 2009 trial date is quickly approaching. (Doc. No. 60). Similarly, this case is far along and at a critical juncture, as extensive discovery has been completed and a ripe dispositive motion is currently pending before the Court. Plaintiffs have also not exercised diligence in bringing forth their motion to withdraw their Complaint. Plaintiffs filed their "Praecipe" seeking withdrawal approximately 22 months after they commenced this action and nine months after Defendants filed their motion for summary judgment. Fact discovery was completed on April 1, 2008, ten months before Plaintiffs filed their dismissal request. (Doc. No. 24). Plaintiffs had ample opportunity to evaluate the evidence uncovered in discovery, but instead opted to seek dismissal at this late stage.

Finally, Plaintiffs have not provided an adequate explanation as to why they are now seeking dismissal. Plaintiffs acknowledge in their memorandum of law that they decided to seek voluntary dismissal after "they realized that they were going to have great difficulty meeting their burden of proof." (Pls.' Rule 41 Br. at 4). If Plaintiffs are attempting to withdraw their Complaint to avoid an adverse determination on Defendants' motion for summary judgment, the Court is certainly not inclined to grant Plaintiffs' request. See Gonzalez v. Jose Santiago, Inc., 141 F. Supp. 2d 202, 205 (D.P.R. 2001) ("The Court has reviewed Co-defendants' motion for summary judgment and . . . it ...

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