United States District Court, D. New Mexico
NOTICE OF CONDITIONS FOR VOLUNTARY DISMISSAL
MATTER comes before the court on Petitioner Othman
Arjouan's Voluntary Motion to Dismiss Petition Without
Prejudice filed June 13, 2018 (ECF No. 108). Upon
consideration thereof, the court is willing to grant Mr.
Arjouan's motion subject to conditions discussed below.
Mr. Arjouan is ordered to file a response to this notice by
5:00 p.m. MDT on Thursday, July 5, 2018.
Arjouan brought this action for return of his son, S.C.A., on
July 31, 2017. See ECF No. 1. A bench trial was
initially set for January 4, 2018, see ECF No. 33,
but on Respondent Latifa Bint-All Al-Gabry Cabré's
motion, trial was postponed and eventually reset for April
17, 2018, see ECF Nos. 46, 77. To reduce prejudice
to Mr. Arjouan from the delay, the court entered an order
excluding the time after January 4, 2018, for the purposes of
the well-settled child defense under the Hague Convention.
See ECF No. 51. Because of deposition scheduling
problems regarding an important witness, trial was postponed
again and reset for May 30, 2018. See ECF Nos.
84-85. On May 29, 2018, Mr. Arjouan informed the court that
he encountered unexpected difficulties entering the United
States, and trial was rescheduled for July 18, 2018.
See ECF Nos. 105, 107. Now, “[d]ue to his
years of persuing [sic] the return of his son, [Mr. Arjouan]
has been emotionally impacted such that he feels compled
[sic] to withdraw his petition, without prejudice.” ECF
No. 108, at 2.
Cabré opposes Mr. Arjouan's motion for voluntary
dismissal without prejudice and asks the court to deny it and
proceed to trial on July 18, 2018. ECF No. 109, at 4.
Alternatively, she asks that the court grant the motion
with prejudice or, failing that, award her the costs
and attorney's fees that she incurred in defending this
stage of litigation, after Ms. Cabré has served an
answer (ECF No. 54), Mr. Arjouan's action may be
dismissed “only by court order, on terms that the court
considers proper.” Fed.R.Civ.P. 41(a)(2). This rule is
designed to prevent voluntary dismissals that unfairly affect
the opposing party. Clark v. Tansy, 13 F.3d 1407,
1411 (10th Cir. 1993). Consequently, the court should grant
Mr. Arjouan's motion unless it would cause legal
prejudice to Ms. Cabré. See Ohlander v.
Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
Ms. Cabré Would Suffer Prejudice If the Motion
mere prospect of defending against a second action does not
constitute legal prejudice. Brown v. Baeke, 413 F.3d
1121, 1124 (10th Cir. 2005). Instead, factors constituting
legal prejudice include (1) “the opposing party's
effort and expense in preparing for trial, ” (2)
“excessive delay and lack of diligence on the part of
the movant, ” (3) “insufficient explanation of
the need for a dismissal, ” and (4) “the present
stage of litigation.” Ohlander, 114 F.3d at
1537. “Each factor need not be resolved in favor of the
moving party for dismissal to be appropriate, nor need each
factor be resolved in favor of the opposing party for denial
of the motion to be proper.” Id. “These
factors are neither exhaustive nor conclusive; the court
should be sensitive to other considerations unique to the
circumstances of each case.” Brown, 413 F.3d
at 1124. “The district court should endeavor to insure
substantial justice is accorded to both parties” and
therefore “must consider the equities not only facing
the defendant, but also those facing the plaintiff.”
Ohlander, 114 F.3d at 1537.
factors (1), (3), and (4) weigh against granting Mr.
Arjouan's motion for voluntary dismissal without
prejudice. Ms. Cabré has spent significant effort and
expense preparing for trial; she asserts that she has
incurred $2, 138.47 in costs and $93, 853.79 in
attorney's fees as of May 31, 2018. ECF No. 109, at 3.
S.C.A. has had to prepare for trial (by providing in camera
testimony), too. See ECF No. 106. While the court
does not find any excessive delay or lack of diligence on the
part of Mr. Arjouan (he is responsible for only the most
recent delay under circumstances that appear to be outside of
his control), Mr. Arjouan has not provided a sufficient
explanation for dismissal. In his motion, he states only that
he “has been emotionally impacted” by the
litigation. ECF No. 108, at 2. Moreover, the present stage of
litigation - with trial imminent - weighs against dismissal.
unique circumstances of this case also weigh against granting
Mr. Arjouan's motion. On one hand, he and his counsel may
be at a disadvantage if he is unable to attend trial in
person because of travel difficulties. On the other hand, the
outcome of this litigation has the potential to profoundly
affect the parties' lives, and whether S.C.A. must be
returned to Denmark is of deep personal significance to
everyone involved. Under these circumstances, Ms.
Cabré understandably feels that she and S.C.A.
“cannot move forward with their lives under the threat
that [Mr. Arjouan] may refile at any time” and that
they “need a final resolution to this matter.”
ECF No. 109, at 2-3. Furthermore, Article 11 of the Hague
Convention provides that proceedings for the return of
children should be handled expeditiously, and Mr. Arjouan has
not indicated when his travel difficulties will be resolved.
The Convention's purpose would not be served by further
delaying the outcome of Mr. Arjouan's case for return,
especially when the case is so close to trial. See
Ohlander, 114 F.3d at 1539 (noting that courts should
consider the Hague Convention's purpose when evaluating a
motion for voluntary dismissal).
the circumstances of this case weigh against granting Mr.
Arjouan's motion. But Mr. Arjouan claims that he would be
prejudiced if his motion were denied because he might not be
able to “be present and meaningfully particpate [sic]
in the trial” because of his travel difficulties. ECF
No. 111, at 5. Rather than denying the motion, then, the
court may (pursuant to Federal Rule of Civil Procedure
41(a)(2)) impose curative conditions to alleviate unfair
prejudice to the opposing party from granting the motion.
See Brown, 413 F.3d at 1126 (“[T]he effective
use of curative conditions can help balance competing
equities and ensure that substantial justice is done for all
parties . . . .”).
Curative Conditions Alleviate the Prejudice from Granting
should usually require a plaintiff to pay the costs of
litigation as a condition of dismissal without prejudice.
See 9 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2366 (3d ed. 2018).
Additionally, “[w]hen a plaintiff dismisses an action
without prejudice, a district court may seek to reimburse the
defendant for his attorneys' fees because he faces a risk
that the plaintiff will refile the suit and impose
duplicative expenses upon him.” AeroTech, Inc. v.
Estes, 110 F.3d 1523, 1528 (10th Cir. 1997); see
also United States ex rel Stone v. Rockwell Int'l
Corp., 282 F.3d 787, 810 (10th Cir. 2002)
(“Typically, ‘a court imposes as a term and
condition of dismissal [without prejudice] that plaintiff pay
the defendant the expenses he has incurred in defending the
suit, which usually includes reasonable attorney's
fees.'” (alteration in original) (quoting
Marlow v. Winston & Strawn, 19 F.3d 300, 303
(7th Cir. 1994))). This curative condition is an appropriate
means of alleviating “the ‘practical
prejudice' of expenses incurred in defending the
action.” Pontenberg v. Bos. Sci. Corp., 252
F.3d 1253, 1260 (11th Cir. 2001) (quoting McCants v. Ford
Motor Co., 781 F.2d 855, 859 (11th Cir. 1986)).
“In contrast, when a plaintiff dismisses an action with
prejudice, attorneys' fees are usually not a proper
condition of dismissal because the defendant cannot be made
to defend again.” AeroTech, 110 F.3d at 1528.
can grant a motion for voluntary dismissal on the condition
that it be with prejudice. 9 Wright & Miller,
supra, § 2366; see Sundown Energy, LP v.
Haller, No. CIV.A. 10-4354, 2012 WL 642840, at *2 (E.D.
La. Feb. 28, 2012); cf. Rockwell Int'l, 282 F.3d
at 810. And it can also give the movant a choice between
dismissal without prejudice conditioned on the
payment of costs and attorney's fees and dismissal
with prejudice conditioned on the payment of costs
alone. 9 Wright & Miller, supra, § 2366;
see Mott v. Conn. Gen. Life Ins. Co., 2 F.R.D. 523,
526 (N.D. Iowa 1942). An award of attorney's fees as a
condition of dismissal without prejudice should not include
“any fees for work that may be utilized in subsequent
litigation of ...