United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court.
matter is before the Court on Plaintiff's Renewed Motion
for Voluntary Dismissal (DN 13), and Defendants' Motion
to Compel Arbitration (DN 14). The motions are ripe for
adjudication. For the reasons outlined below, Plaintiff's
Renewed Motion for Voluntary Dismissal is GRANTED, and
Defendants' Motion to Compel Arbitration is DENIED AS
STATEMENT OF FACTS AND CLAIMS
Gerald Warehime (“Warehime”) was a resident of a
senior living community owned and operated by Defendants
Louisville Retirement Residence LLC d/b/a/ Oxmoor Lodge
(“Oxmoor Lodge”), and Harvest Management Sub LLC
d/b/a Holiday Retirement (“Holiday Retirement”).
(Compl. ¶¶ 2-4, 6, DN 1-1). During Warehime's
residency at Oxmoor Lodge, one of Defendants' employees
allegedly entered Warehime's residence and assaulted him.
(Compl. ¶¶ 7-8). After Plaintiff filed a lawsuit in
Jefferson Circuit Court against Defendants, they removed the
case to this Court. (Notice Removal, DN 1).
Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1332(a). There is complete diversity of citizenship
among the parties, and the amount in controversy exceeds$75,
000, exclusive of interest and costs. (Notice Removal
¶¶ 1, 3-8).
Plaintiff's Renewed Motion for Voluntary Dismissal
seeks to voluntarily dismiss his claims without prejudice,
which Defendants strenuously oppose. Such dismissal is
governed by Fed.R.Civ.P. 41, which provides in relevant part:
Except 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. If a defendant has
pleaded a counterclaim before being served with the
plaintiff's motion to dismiss, the action may be
dismissed over the defendant's objection only if the
counterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(a)(2). “Whether dismissal should be
granted under the authority of Rule 41(a)(2) is within the
sound discretion of the district court.” Grover v.
Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994)
(citing Banque de Depots v. Nat'l Bank of
Detroit, 491 F.2d 753, 757 (6th Cir. 1974)).
general, a court would abuse its discretion in this situation
only where a defendant would suffer “plain legal
prejudice” if the plaintiff were allowed to dismiss his
claims without prejudice, “as opposed to facing the
mere prospect of a second lawsuit.” Id.
(citing Cone v. W.Va. Pulp & Paper Co., 330 U.S.
212, 217 (1947); Kovalic v. DEC Int'l, Inc., 855
F.2d 471, 473 (7th Cir. 1988)). The factors a court should
consider in determining whether plain legal prejudice will
occur include: “the defendant's effort and expense
of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action, insufficient explanation for the need to take a
dismissal, and whether a motion for summary judgment has been
filed by the defendant.” Id. (citation
Defendant's Effort & Expense of Trial
maintain this factor supports denial of Warehime's motion
because they “have invested considerable time and
incurred significant expense in defense of this case.”
(Defs.' Resp. Pl.'s Mot. Dismiss 4, DN 15). From the
Court's perspective, however, this case is still
relatively in its infancy. The case was removed on October 4,
2016, and less than two weeks later, Warehime moved to
dismiss his claims without prejudice. (Notice Removal, DN 1;
Pl.'s Mot. Dismiss, DN 6). After entering an order
granting Warehime's motion, the Court set aside the order
upon motion of Defendants. (Order, DN 7; Order, DN 9). At
that point, there was no docket activity in the case for
several months until a telephonic status conference was held
on January 20, 2017. (Order, DN 12). During the conference,
the Court granted Defendants 45 days to move to dismiss or
compel arbitration. (Order 1). On February 9, 2017, Warehime
again moved to voluntarily dismiss his claims. (Pl.'s
Mot. Dismiss, DN 13). Almost three weeks later, ...