United States District Court, D. New Mexico
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.
MEMORANDUM OPINION AND ORDER OF DISMISSAL WITHOUT
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.
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.
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
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).
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
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.
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.
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).
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,
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 ...