Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JOHN DOE and JANE DOE for themselves and on behalf of all others similarly situated, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 06-111 C Judge Christine O.C. Miller

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE Plaintiffs have filed a motion seeking voluntary dismissal of their complaint pursuant to RCFC 41(a)(2). An order made pursuant to this request is made "upon such terms and conditions as the court deems proper." RCFC 41(a)(2). However, "unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." Id. For the reasons stated below, defendant respectfully requests that the case be dismissed with prejudice. STATEMENT OF THE ISSUE Whether the Court should dismiss plaintiffs' complaint with or without prejudice. STATEMENT OF FACTS In late September 2004, United States Forces in Korea ("USFK") issued a series of orders that implemented curfew measures applicable to personnel assigned to USFK. See John Doe and Jane Doe, et al., v. United States, No. 06-111C (Fed. Cl. Sept 15, 2006)(order denying RCFC 56(f) Motion) at page 1, and attached declaration of Walter J. Folger ("Folger Decl.")).1 Mr. Folger's declaration demonstrates that this dispute has been continuing for two years, in

Mr. Folger's declaration contained unnumbered paragraphs. Counsel for defendant has numbered these paragraphs for ease of referencing.

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various forums, including an arbitration brought by the National Federation of Federal Employees ("NFFE"), in accordance with the collective bargaining agreement.2 Folger Dedl. ¶¶ 8 & 9. On February 14, 2006, plaintiffs filed this instant suit. On June 6, 2006, defendant filed a motion for summary judgment. On July 5, 2006, the Court granted plaintiffs' motion for an extension of time, until August 4, 2006 to respond to defendant's motion. On July 27, 2006, plaintiffs requested additional delay (until November 3, 2006) and time to conduct discovery. Following several filings upon this motion, the Court denied plaintiffs' request for discovery, and ordered plaintiffs to respond to defendant's motion for summary judgment by September 29, 2006. Plaintiffs elected not to file a response, but instead, filed a motion for voluntary dismissal without prejudice ("Pl. Mot."). SUMMARY OF THE ARGUMENT "[W]hen considering such a motion to voluntarily dismiss, the court must keep uppermost in mind the effected interests of the defendant, because it is its position which must be protected." Standard Space Platforms Corp. v. United States, 38 Fed. Cl. 461, 467 (1997). Here, plaintiffs' complaints about the curfew orders have been either in grievance procedures or this Court for over two years. The Government has expended considerable resources in advancing and has filed a dispositive motion. Yet, plaintiffs' motion claims, without any explanation, that the Court's September 15, 2006 Order has caused them to "reexamine the nature and suitability

On February 21, 2006, NFFE contacted the arbitrator and informed him that they were withdrawing the grievance. Folger Decl. ¶ 10. The stated reason was that a class action lawsuit on behalf of affected employees had been filed. Id. The scheduled arbitration hearing was cancelled based on the NFFE's request. Id. 2

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of the complaint." Pl. Mot. p. 1. Clearly, if the "nature and suitability" of the complaint cannot withstand defendant's motion or otherwise justify the further prosecution of this case, then there is no reason to permit plaintiffs to refile this complaint, by dismissing the case without prejudice. The Doe plaintiffs have had plenty of time to determine the nature and suitability of their lawsuit and should not be permitted to, as they did in the grievance process, retract without consequence, leaving the Government vulnerable to further litigation. As we set forth below, plaintiffs' barebones motion, with no explanation as to why they want to withdraw their complaint, should be dismissed with prejudice. ARGUMENT I. Dismissal With Prejudice Is Warranted In This Case As the United States Court of Appeals for the Eighth Circuit has explained, "[t]he purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals which unfairly affect the other side." Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987); accord Grover v. Eli Lilly and Co., 33 F.3d 716, (6th Cir. 1994); Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176, 177 (5th Cir. 1990).3 Consequently, "when considering such a motion to voluntarily dismiss, the court must keep uppermost in mind the effected interests of the defendant, because it is its position which must be protected." Standard Space Platforms Corp., 38 Fed. Cl. at 467 (citing LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976)). The Court should apply "much more stringent scrutiny" if the defendant has responded to the complaint. Id.

Paulucci covered FRCP 41(a)(2), which mirrors RCFC 41(a)(2), in all material particulars. Standard Space Platforms Corp., 38 Fed. Cl. at 466; see also "Rules Committee Note" to RCFC 2002 Revision (minor changes made to more closely conform to FRCP 41). 3

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Based upon the foregoing, this Court has recognized three grounds that constitute prejudice to the defendant, any one of which justifies dismissal a dismissal with prejudice: (1) significant progress has been made in the case; (2) a dismissal without prejudice would impose a burden upon the defendant; and (3) the plaintiff fails to demonstrate both diligence and good faith in pursuing his claim. Deuterium Corp. v. United States, 21 Cl. Ct. 132, 134 (1990); see also Standard Space, 38 Fed. Cl. at 466. All three grounds exist in this case. Therefore, the Court should dismiss the case with prejudice. A. Progress Of The Litigation

As noted above, upon considering a RCFC 41(a)(2) motion to dismiss without prejudice, the Court should apply "much more stringent scrutiny" if the defendant has responded to the complaint. See Standard Space, 38 Fed. Cl. at 467. Here, the United States has responded with a dispositive motion. See Schweiger Constr. Co. Inc. v. United States, 49 Fed. Cl. 188, 209 (2001)(dismissing with prejudice when "the government clearly expended considerable resources in developing the arguments presented in its motion to dismiss [for lack of] jurisdiction" ). Accordingly, the Doe plaintiffs must satisfy stringent scrutiny before the Court dismisses their case without prejudice. The Doe plaintiffs' motion, which provides no rationale for their seeking a dismissal without prejudice, fails to satisfy any scrutiny, let alone stringent scrutiny. Moreover, while it is true that this case has been pending upon the Court's docket for less than a year now, as Mr. Folger's declaration shows, the United States has been defending these curfew orders for nearly two years. Although "two years is not an inordinate amount of time for

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a case to be pending, . . . two years still represents a substantial amount of time." Standard Space, 38 Fed. Cl. at 468 (emphasis in original). B. Burden Upon The Defendant

Were the Court to dismiss the Doe plaintiffs case without prejudice, it would impose a twofold burden upon the United States. First, a dismissal without prejudice would deprive the United States of a ruling upon its pending motion for summary judgment. This Court has made clear that "[d]ismissal with prejudice is particularly appropriate where plaintiff moves to withdraw during the pendency of a summary judgment motion filed by defendant." Deuterium, 21 Cl. Ct. at 134-35 (citing, inter alia, Pace v. Southern Express Co., 409 F.2d 331 (7th Cir. 1969)) (emphasis added). In Pace, the court of appeals affirmed the district court's denial of the plaintiff's motion to dismiss without prejudice, in part because the plaintiff "failed to file any brief with respect to the [defendant's pending] motion for summary judgment and was attempting to deprive the defendant of a ruling on the summary judgment motion by its dismissal tactic." Pace, 409 F.2d at 334; see also Radiant Tech. Corp. v. Electrovert USA Corp., 122 F.R.D. 201, 203 (N.D. Tex. 1988) (voluntary dismissal without prejudice should be refused "when a plaintiff seeks to circumvent an expected adverse result"). The Doe plaintiffs, who voluntarily proceeded with this case in this forum, after removing it from arbitration, should not now be permitted both to evade the United States' motion for summary judgment, by withdrawing, and then by filing at a later date. Second, "[t]his court may dismiss an action with prejudice if it finds `the government has devoted considerable time and effort to preparing the case and it may cause the government

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expense and inconvenience if the case now were put in possible limbo.'" Schweiger Constr. Co., Inc. v. United States, 49 Fed. Cl. 188, 209 (2001) (quoting Alumni Ass'n of Univ. of North Carolina, Inc. v. United States, 223 Ct. Cl. 765, 767, 650 F.2d 287 (1980)) (alterations omitted). In Schweiger, the Court dismissed the plaintiff's claim with prejudice because "the government clearly expended considerable resources in developing the arguments presented in its motion to dismiss [for lack of] jurisdiction." Schweiger, 49 Fed. Cl. at 209. Likewise, the United States here devoted considerable resources to preparing its dispositive motion and responding to plaintiffs' RCFC 56(f) motion. Rather than imposing a burden upon the United States, the Court should dismiss the case with prejudice. D. Plaintiff's Lack Of Diligence And Good Faith

"If plaintiff has not prosecuted his case with diligence and good faith, it is appropriate for the court to grant a voluntary motion to withdraw with prejudice." Deuterium, 21 Cl. Ct. at 135 (citations omitted) (emphasis supplied). "Insufficient explanation of the need for dismissal, using dismissal to deprive defendant of a ruling on a dispositive motion, and excessive delay are among the factors which justify dismissal with prejudice." Id. (citation omitted), quoted in Standard Space, 38 Fed. Cl. at 467. The Doe plaintiffs provide no explanation of their need for a dismissal without prejudice. They simply state the Court's denial of discovery has caused them to "reexamine the nature and suitability of [their] complaint." Pl. Mot. 1. This explanation is wholly insufficient. Plaintiffs have not acted diligently in resolving the legal issue that formed the basis for their complaint. It is beyond dispute that for two years, plaintiffs and their union have been complaining about the orders at issue. However, whenever a review of their complaint is at

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hand, plaintiffs withdraw their claims to seek a different forum. As noted above, an arbitration hearing over this matter was scheduled for March 8, 2006. However, after much preparation upon the part of the Government, NFFE withdrew plaintiffs' arbitration request, to present the matter to this Court. Folger Decl. ¶ 8. However, when the Government placed the Curfew Orders directly before this Court, plaintiffs first sought to evade review by seeking irrelevant discovery, and now seek to further evade review by asserting that they have reexamined the nature and suitability of their case. Obviously, plaintiffs have concluded that their claims regarding the various curfew orders are without merit. If that is not the case, then plaintiffs' motion to voluntarily dismiss their complaint can only be explained by the Court's refusal to permit discovery, including their intent to subject General LaPorte to deposition. Regardless of which of these disappointments motivates plaintiffs' current retreat, neither justifies dismissing the matter without prejudice. E. Whyde Is Distinguishable From The Doe's Case

The Doe plaintiffs, without setting forth any analysis, simply cite to Whyde v. United States, 51 Fed. Cl. 635 (2002), and state that "[without prejudice] dismissal will not prejudice defendant." Pl. Mot. 1. In Whyde the Court dismissed without prejudice after considering several factors. Whyde v. United States, 51 Fed. Cl. at 637 (discussing factors set forth in D'Alto v. Dahon Cal., Inc., 100 F.3d 281, 283 (1996) and Pace v. S. Express Co., 409 F.2d 331, 334 (1969), to include: 1) plaintiff's lack of diligence on the part of the plaintiff in prosecuting the action; 2) any undue vexatiousness on plaintiff's part; 3) the extent to which the suit has progressed, including defendant's efforts and incurred expenses; 4) the duplicative expense of relitigation; 5) the adequacy of plaintiff's explanation for the need to dismiss; and, 6) the fact

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that a motion for summary judgment has been filed by defendant). Although the Whyde court applied these factors to the facts in that case and determined that dismissal without prejudice was appropriate in the Whyde case, as we show below, the facts in the present case are easily distinguished. cussed. In Whyde, the plaintiff was pro se, had limited funds to proceed, and was litigating in two different forums. Whyde 51 Fed. Cl. at 637. Such is not the case here. Plaintiffs are represented by a union and outside counsel, there has been no claim that NFFE has limited funds to proceed with this matter, and there is no other litigation concerning this matter. In any event, as we explained above, the Doe plaintiffs have failed to demonstrate that the factors outlined in Whyde are present here. At bottom, the Government has expended a substantial amount of resources over the past two years dealing with his matter. Senior Government leaders and their legal counsel have been involved in numerous meetings, negotiation sessions, grievance reviews, and an aborted demand for arbitration. This case is now ripe for resolution. A dismissal without prejudice would deprive the United States of a ruling upon its pending motion for summary judgment. Moreover, if dismissal is without prejudice, plaintiffs would be free to seek resolution at some later date in this or some other forum. A dismissal with prejudice will allow the affected military command to know to focus its energies upon other matters. CONCLUSION For the reasons stated above, the United States respectfully requests that the Court dismiss this case with prejudice.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director

s/Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

OF COUNSEL: THOMAS M. RAY U.S. Army Legal Services Agency Litigation Division Arlington, VA s/Douglas K. Mickle DOUGLAS MICKLE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., N.W. Washington, D.C. 20530 Tel: (202) 307-0383 Fax: (202) 353-7988 Attorneys for Defendant

October 3, 2006

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CERTIFICATE OF SERVICE I hereby certify that on October 3, 2006, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE," was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Douglas K. Mickle Douglas K. Mickle