United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Walsh filed a Complaint in March 2018, alleging that her
aunt, Patricia Means, owed money to her father, Tavner
Dunlap. Walsh contends that Means and Dunlap had entered into
a “Trade Agreement, ” which set out specific
conditions under which Means would repay Dunlap $135, 000.
[Record No. 1 ¶ 13] According to Walsh, Means failed to
meet her repayment obligation and still owed money to Dunlap
when he died in 2013. Walsh reports that she is the successor
to her father's interest in the Trade Agreement and,
therefore, she is pursuing a breach of contract claim against
informed the Court in June 2018 that Defendant Means died
after the Complaint was filed, but before she was served.
[Record No. 5] Walsh filed an Amended Complaint substituting
Means' estate, by and through its personal representative
Anne M. Carlsson, as the defendant. [Record No. 8] Carlsson
filed an Answer on September 12, 2018. [Record No. 21]
thereafter, Walsh filed a motion to voluntarily dismiss this
matter without prejudice. [Record No. 23] She reports that
Means' estate filed for probate in Horry County, South
Carolina in May 2018 and that Walsh promptly filed a claim in
that action. [See Horry Cnty. Probate Court, No.
2018ES2601220.] Accordingly, she argues, “this matter
is now pending before two separate courts.” [Record No.
does not object to dismissal of this action without
prejudice, but argues that she is entitled to recover the
attorney's fees incurred in defending the action in this
Court. [Record No. 25] She also contends that Walsh should
stipulate to certain discovery issues, including a waiver of
discovery objections with respect to evidence located in
41(a)(2) of the Federal Rules of Civil Procedure governs
Walsh's request to dismiss the action without prejudice.
It provides that “an action may be dismissed at the
plaintiff's request only by court order, on terms the
court considers proper.” The purpose of the rule is to
protect the nonmovant from unfair treatment, and courts
frequently award costs and attorneys' fees following the
dismissal of a suit without prejudice under Rule 41(a)(2).
See Grover v. Eli Lilly & Co., 33 F.3d 716, 718
(6th Cir. 1994); DWG Corp. v. Granada Invests.,
Inc., 962 F.2d 1201 (6th Cir. 1992). However,
attorneys' fees under Rule 41(a)(2) should be awarded
only “when justice so demands.” See Gap, Inc.
v. Stone Int'l Trading, Inc., 169 F.R.D. 584, 588
case is still in an early stage procedurally. Further, there
is no indication that Walsh commenced the suit in bad faith
or that she has engaged in vexatious conduct. Means was still
living when Walsh filed the Complaint and Carlsson concedes
that much of the relevant evidence is located in Kentucky.
Now that Means has passed away and her estate is being
administered in South Carolina, it is reasonable for Walsh to
pursue the claim in the South Carolina court. Further,
Carlsson has not argued that the existing legal work-product
will not be useful during future litigation of this claim.
See Wargo v. Jungels, No. 11-10195, 2012 WL 1060094,
at *4 (E.D. Mich. March 29, 2012) (citing Rosenthal v.
Bridgestone/Firestone, Inc., 217 Fed.Appx. 498, 502 (6th
Cir. Feb. 16, 2007)). Accordingly, the Court finds no reason
to vary from the general rule that parties are required to
bear their own attorneys' fees.
contends that this Court should impose discovery and
choice-of-law limitations to protect her “from being
harmed from a tactical point of view.” However, these
are not reasonable conditions upon which to base dismissal
under Rule 41(a)(2). When voluntary dismissal is without
prejudice, “the plaintiff is placed in a legal position
as if he had never brought the first suit” and has the
right to bring a later suit on the same cause of action
without an adjudication on the merits. Dearth v.
Mukasey, 516 F.3d 413, 415 (6th Cir. 2008). See also
Bechuck v. Home Depot, U.S.A., Inc., 814 F.3d 287,
298-99 (5th Cir. 2016) (noting that “the possibility of
tactical advantage should not justify the imposition of a
refiling condition). Accordingly, it is hereby
Plaintiff Sarah Walsh's Motion to Dismiss [Record No. 23]
matter is DISMISSED, without prejudice, and