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Warehime v. Louisville Retirement Residence LLC

United States District Court, W.D. Kentucky, Louisville Division

May 26, 2017

GERALD WAREHIME PLAINTIFF
v.
LOUISVILLE RETIREMENT RESIDENCE LLC d/b/a/ OXMOOR LODGE et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge United States District Court.

         This 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 MOOT.

         I. STATEMENT OF FACTS AND CLAIMS

         Plaintiff 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).

         II. JURISDICTION

         The 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).

         III. DISCUSSION

         A. Plaintiff's Renewed Motion for Voluntary Dismissal (DN 13)

         Plaintiff 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)).

         In 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 omitted).

         1. Defendant's Effort & Expense of Trial Preparation

         Defendants 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, ...


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