United States District Court, W.D. Pennsylvania
DR. PATRICK ST. GERMAIN, Plaintiff,
DR. RAYMOND WISNIEWSKI, et al., Defendants.
MEMORANDUM AND ORDER
Bissoon United States District Judge
before the Court is Plaintiff Dr. Patrick St. Germain
(“Plaintiff”)'s Motion for Voluntary
Dismissal of Count VIII Without Prejudice (Doc. 44). In his
Motion, Plaintiff seeks leave to voluntarily dismiss Count
VIII pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii). (Doc. 44 at
¶ 3). However, dismissal pursuant to Rule
41(a)(1)(A)(ii) requires “a stipulation of dismissal
signed by all parties who have appeared, ” and, here,
Defendants do not consent to the dismissal of Count VIII
without prejudice. (Doc. 45 at ¶ 3). Rather, Defendants
ask that the Court dismiss Count VIII with prejudice
pursuant to Rule 41(a)(2). (Id.).
41(a)(2) provides 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). Whether a
dismissal should be granted on a Rule 41(a)(2) motion lies
within the sound discretion of the district court. In re
Tutu Wells Contamination Litig., 994 F.Supp. 638, 652
(D. Vi. 1998) (citing Ferguson v. Eakle, 492 F.2d
26, 28 (3d Cir. 1974)). The purpose of the Rule “is
primarily to prevent voluntary dismissals which will
prejudice the opposing party, and to permit the court to
impose curative conditions to ameliorate such
prejudice.” See 9 Fed. Prac. & Proc. Civ.
§ 2364 (3d ed.).
instant case, Defendants, while contesting the terms of
dismissal, do not oppose Plaintiff's motion to
voluntarily dismiss Count VIII. Defendants argue, however,
that the dismissal of Plaintiff's equitable claim should
be with prejudice. Notably, “the question of whether
the Court may convert a Motion under Rule 41(a)(2) into a
dismissal with prejudice is an open one in this
Circuit.” Rose v. City of Allentown, 2005 WL
5061529, at *1 (E.D. Pa. May 6, 2005). However, courts
outside the Circuit have held that “if the plaintiff
either moves for dismissal without prejudice or fails to
specify whether the request is for dismissal with or without
prejudice, the matter is left to the discretion of the court.
The trial court may grant a Rule 41(a) dismissal without
prejudice or may require that the dismissal be with
prejudice.” 9 Fed. Prac. & Proc. Civ. § 2367
(3d ed.) (collecting cases). “A dismissal with
prejudice may be granted ‘where it would be inequitable
or prejudicial to defendant to allow plaintiff to refile the
action.”' John T. v. Del. Co. Intermediate
Unit, 2001 WL 1391500, at *4 (E.D. Pa. Nov. 7, 2001)
(citation omitted). However, “[t]he prejudice to
defendant must be something other than the mere prospect of a
second lawsuit.” Id. (citation omitted).
several factors counsel toward the dismissal of Count VIII
with prejudice. First, Plaintiff did not exercise diligence
in bringing this Motion, as his request for withdrawal comes
a year and a half after he filed the initial Complaint, where
he first set out his claim for equitable relief. (See Doc. 1
¶¶ 89-94); Schandelmeier v. Otis Div. of
Baker-Material Handling Corp., 143 F.R.D. 102 (W.D. Pa.
1992) (“In ruling on a motion to dismiss without
prejudice under Rule 41(a)(2), it is necessary to weigh . . .
the plaintiff's diligence in bringing the motion and
explanation therefore.”). Second, as reflected in an
email dated April 10, 2017, Plaintiff's counsel recently
told defense counsel that Plaintiff would be willing to
dismiss the case with prejudice. (Doc. 48-1 at 4)
(Plaintiff's counsel stating: “We can agree to
articulate the dismissal as being with prejudice.”).
Finally, Defendants have stated that, if the claim is
dismissed without prejudice, they “would need to take
what is likely unnecessary discovery as to the equitable
claim, ” presumably in case Plaintiff attempts to
bring this claim in a subsequent litigation.(Doc. 45 at ¶
3). Indeed, as Plaintiff concedes, if Count VIII is dismissed
without prejudice, Defendants still may find it necessary to
take discovery related to “Plaintiff's request for
an injunction against the Defendants to prevent them from
allowing and/or supporting Plaintiff's competitors to
operate or utilize the NutriMost System within the Four
Counties.” (Doc. 47 at ¶ 9).
despite the above factors, the Court, in an abundance of
caution, will grant Plaintiff's motion and dismiss Count
VIII without prejudice. As noted, “the question of
whether the Court may convert a Motion under Rule 41(a)(2)
into a dismissal with prejudice is an open one in this
Circuit.” Rose, 2005 WL 5061529, at *1.
Furthermore, while Defendants have indicated that they may
take additional discovery in anticipation of Plaintiff filing
a second lawsuit raising his equitable claim, they have not
shown that they would suffer “plain legal
prejudice” if the Court dismisses Count VIII without
prejudice, as discovery in this case is ongoing and there are
no pending dispositive motions. See In re Paoli R.R. Yard
PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990);
Ravenel v. Smithkline Beecham Corp., 2013 WL
4223706, *1 (E.D.Pa. Aug.14, 2013) (citing In re Diet
Drugs (Phentermine / Fenfluramine / Dexfenfluramine) Prods.
Litig., 85 F. App'x 845, 847 (3d Cir. 2004) and
Ferguson, 492 F.2d at 28) (“Voluntary motions
to dismiss are generally found prejudicial where a plaintiff
seeks to start its litigation anew in the advanced stages of
a lawsuit, after discovery has closed and the parties have
filed dispositive motions or prepared for trial”).
above reasons, Plaintiff's Motion for Voluntary Dismissal
of Count VIII Without Prejudice (Doc. 44) is GRANTED. Count
VIII of the Amended Complaint is hereby DISMISSED without
 Absent extraordinary circumstances,
the Court will not allow Plaintiff to amend his
pleadings to reassert his equitable claim in this
litigation, after having ...