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Hunt v. Tuls Cattle Co., III LLC

United States District Court, D. New Mexico

May 11, 2017

LEE HUNT, Personal Representative of the Wrongful Death Estate of JESUS ROGELIO MORALES BRAVO; and MARIA VARGAS, Individually and as Guardian and Next Friend of V.M., Plaintiffs,
TULS CATTLE COMPANY III, LLC., A New Mexico Limited Liability Company, Defendant.


         Plaintiffs Lee Hunt and Maria Vargas (Plaintiffs) state that they will seek to amend the Complaint in this federal proceeding by adding two individual defendants who will destroy this Court's diversity jurisdiction. PLAINTIFFS' RULE 41 MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE at 3 (Doc. No. 13) (Motion to Dismiss). Thus, Plaintiffs seek permission under Rule 41(a)(2) to voluntarily dismiss this case without prejudice so that they can proceed in State Court against the proper Defendants. Id. Defendant Tuls Cattle Company III, LLC (Defendant or Defendant Tuls III) opposes voluntary dismissal arguing that Plaintiffs are impermissibly engaging in forum shopping and that Plaintiffs' “improper stratagem should not be rewarded.” DEFENDANT'S RESPONSE TO PLAINTIFFS' RULE 41 MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE (Doc. No. 16) (Response). In PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS' RULE 41 MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE (Doc. No. 17) (Reply), Plaintiffs assert that they have met the Rule 41 requirements for voluntary dismissal of their Complaint.


         Plaintiffs bring state-law negligence claims against Defendant for wrongful death and loss of consortium relating to the death of Jesus Rogelio Morales Bravo, who allegedly was shot and killed by a co-worker, Francisco Gutierrez. COMPLAINT FOR WRONGFUL DEATH, NEGLIGENCE, NEGLIGENT SUPERVISION, AND NEGLIGENT RETENTION (Doc. No. 1 at 6-13) (Complaint). At the time of the shooting, Mr. Morales Bravo and Mr. Gutierrez were working on a ranch in Texas that Defendant Tuls III allegedly owned and operated. According to Defendant, however, Plaintiffs have identified the wrong party based on Defendant's representation that, at all pertinent times, Tuls Cattle Company IV, LLC (Tuls IV), rather than Tuls III, employed the two men. Response at 1.

         On January 16, 2017, Plaintiffs filed their Complaint in the First Judicial District Court of the State of New Mexico (No. Civ D-101-CV-2017-00118). Plaintiffs claimed, in part, that Defendant Tuls III's supervisors and other employees were aware of Mr. Gutierrez's violent temper and knew that Mr. Gutierrez carried a firearm while at work, often discharged the firearm at work when shooting at small animals and other objects, and was not disciplined for this conduct. Complaint ¶¶ 10-14.

         On March 8, 2017, Defendant Tuls III removed the state law proceeding to federal court based on diversity jurisdiction. Notice of Removal (Doc. No. 1). Plaintiffs are citizens of New Mexico. Defendant states that both Tuls III and Tuls IV are limited liability companies that have the same sole proprietor, Jason Tuls. According to Defendant, Mr. Tuls is a citizen and resident of Texas. Response at 5; Jason Tuls Declaration (Notice of Removal at 23).

         In its Answer, filed March 22, 2017, Defendant Tuls III denied that it employed Messrs. Morales Bravo and Gutierrez and alleged that Plaintiffs' claims were due to the acts or negligence of a third party over whom Tuls III did not exercise control. Answer ¶¶ 1, 2, 24 (Doc. No. 7). Defendant Tuls III also asserted that Plaintiffs' claims were barred to the extent that Plaintiffs had identified the wrong party as a Defendant. Id. Answer, Defense ¶ 4.

         In its Response to the Motion to Dismiss, Defendant Tuls III offers to provide written consent allowing Plaintiffs to amend their Complaint to name Tuls IV instead of Tuls III, an amendment that Defendant contends will not affect this Court's diversity jurisdiction. Response at 5. However, Plaintiffs state that if their Rule 41 Motion to Dismiss is denied, they anticipate filing a motion for leave to amend the Complaint to add two supervisory Defendants, Mssrs. Jerry Braun and Eduardo Contreras, Jr., who are residents and citizens of New Mexico. Motion to Dismiss at 3. If the amendment is allowed, remand would be required since there would no longer be complete diversity of citizenship. Plaintiffs also represent that if their motion for leave to amend the Complaint is denied, they would be forced to file a separate state court action against the supervisors. Id. at 3 n.1. Thus, Plaintiffs contend that the Rule 41 Motion to Dismiss will ultimately ensure that all parties are consolidated in the same action. Id. at 3.



         Once a defendant has filed an answer, a plaintiff may voluntarily dismiss a claim only upon an order of the Court. Fed.R.Civ.P. 41(a)(2). Rule 41 also states that a dismissal under paragraph 2 is without prejudice. Id. See Rippetoe v. Taos Living Center, No. CIV 12-646 JAP/LFG, 2013 WL 12138880, at *2 (D.N.M. Jan. 8, 2013) (unpublished) (discussing voluntary dismissals under Rule 41(a)(2)). Generally, Rule 41(a)(2) requests for dismissal are viewed liberally. Carl Kelley Constr. LLC v. Danco Tech., No. CIV 08-379 JB/RLP, 2010 WL 965735, at *1 (D.N.M. Feb. 28, 2010) (unpublished). In United States ex rel Stone v. Rockwell Int'l Corp., 282 F.3d 787, 810 (10th Cir. 2002), the Tenth Circuit Court of Appeals instructed that “a plaintiff may voluntarily dismiss his action ‘so long as the defendant is not hurt…'” (citation omitted). Absent legal prejudice to a defendant, the district court should normally grant a motion for voluntary dismissal under Rule 41(a)(2). Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). At least one Circuit Court has defined legal prejudice as meaning “something other than the necessity that defendant might face of defending another action.” Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984).

         As this Court observed in Rippetoe, the Tenth Circuit has articulated a non-exclusive, four-factor test for district courts to apply in determining whether to deny a request for voluntary dismissal based on legal prejudice to a defendant. Rippetoe, 2013 WL 12138880, at *2. Those factors include: “1) the opposing party's effort and expense in preparing for trial; 2) excessive delay and lack of due diligence on the part of the movant; 3) insufficient explanation of the need for a dismissal; and 4) the present stage of the litigation.” Id. (citing Ohlander, 114 F.3d at 1537). The district court need not resolve all of the factors in favor of the movant before allowing voluntary dismissal, nor must it resolve each factor in favor of a defendant to deny a Rule 41(a)(2) request. Id. “The central issue ‘is whether the opposing party will suffer prejudice in light of the valid interests of the party.'” Id. (citation omitted). The Tenth Circuit Court has further noted that “[t]he possibility that plaintiffs may gain a tactical advantage by refiling in state court is insufficient to deny a voluntary motion to dismiss without prejudice, especially when state law is involved.” Am. Nat. Bank & Trust Co. of Sapulpa v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991).

         B. DISCUSSION

         Defendant does not explicitly address the non-exclusive, four factor test for voluntary dismissal in Ohlander. Defendant's primary argument in opposition to dismissal is that Plaintiffs knew the identities of the non-diverse individual supervisors from the beginning of this litigation and are merely engaging in improper forum shopping to defeat this Court's diversity jurisdiction. Response at 3. Defendant also posits that Plaintiffs cannot articulate a valid need for dismissal, “which weighs against their argument that Defendant will suffer no prejudice as a result of this voluntary dismissal.” Id. at 4. Yet, Defendant does not affirmatively state that it would be prejudiced by the voluntary dismissal, nor does Defendant describe how it would suffer legal prejudice, other than to observe that it incurred the costs of filing both the Notice of Removal and a Response to the Motion. Id. at 4, 5.

         The Court finds that all of the Ohlander factors favor dismissal. With regard to the first Ohlander factor, which considers “the opposing party's effort and expense in preparing for trial, ” neither party has engaged in any preparation for trial. This case was just removed to federal court in March 2017. (Doc. No. 1). The parties have not engaged in any discovery at this stage of the proceeding. Moreover, the parties agreed to delay exchanging initial disclosures and to ...

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