251 F.R.D. 371 (S.D.Iowa 2008), 4:07-cv-00579-JEG-TJS, Quick v. EMCO Enterprises, Inc.

Docket Nº4:07-cv-00579-JEG-TJS.
Citation251 F.R.D. 371
Opinion JudgeJAMES E. GRITZNER, District Judge.
Party NameDavid QUICK, Plaintiff, v. EMCO ENTERPRISES, INC., and Andersen Corporation, Defendants.
AttorneyJill M. Zwagerman, Thomas Andrew Newkirk, Fiedler & Newkirk PLC, Urbandale, IA, for Plaintiff. James R. Swanger, Christopher L. McDonald, Belin Lamson McCormick Zumbach Flynn, Des Moines, IA, for Defendants.
Case DateApril 29, 2008
CourtUnited States District Courts, 8th Circuit

Page 371

251 F.R.D. 371 (S.D.Iowa 2008)

David QUICK, Plaintiff,


EMCO ENTERPRISES, INC., and Andersen Corporation, Defendants.

No. 4:07-cv-00579-JEG-TJS.

United States District Court, S.D. Iowa, Central Division.

April 29, 2008

Page 372

Jill M. Zwagerman, Thomas Andrew Newkirk, Fiedler & Newkirk PLC, Urbandale, IA, for Plaintiff.

James R. Swanger, Christopher L. McDonald, Belin Lamson McCormick Zumbach Flynn, Des Moines, IA, for Defendants.


JAMES E. GRITZNER, District Judge.

This matter comes before the Court on the consolidated motions of Plaintiff David Quick (Quick) to dismiss his claim under the Family Medical Leave Act (FMLA) and to remand his case to state court (Clerk's No. 2). Defendants EMCO Enterprises, Inc., and Andersen Corporation (Defendants) resist Quick's motions. The parties have not requested a hearing. and the Court finds no hearing is necessary for the resolution of these motions. The matter is fully submitted and ready for disposition.

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On August 30, 2006, Quick filed his Petition against the Defendants in the Iowa District Court for Polk County, alleging discrimination, harassment, and retaliation based on sex and sexual orientation under Chapter 216 of the Iowa Civil Rights Act and the City of Des Moines Municipal Code. On October 16, 2006, Defendants filed their answer and affirmative defenses. The state court entered a scheduling order and set a May 2008 trial date. The state court also entered several rulings on discovery and other matters in the case.

On December 4, 2007, Quick amended his petition adding an FMLA claim. Based on the amended petition, on December 19, 2007, Defendants timely removed this case to federal court pursuant to 28 U.S.C. § 1446(b). On December 20, 2007, Quick filed the present motions. Quick asserts the Court should dismiss his FMLA claim without prejudice because his failing emotional health would benefit from an expeditious resolution, and he further asserts that " if the case is kept on the Federal Court's docket, Plaintiff will not likely receive a trial until mid 2009, and would therefore rather give up a claim under the FMLA to keep his current trial date in State Court." Quick asserts that dismissal of his FMLA claim will remove all claims over which this Court has original jurisdiction, and thus he requests the Court remand the case pursuant to 28 U.S.C. § 1367(c) to allow the Iowa state court to address harassment and retaliation based on sexual orientation, which are issues of first impression under Iowa law for which there is no corresponding federal law.

Defendants resist Quick's motion, asserting Quick added the FMLA claim on the very last day permitted by the scheduling order in an attempt to manipulate the forum in which his claim will be resolved. Therefore, Defendants alternatively request the Court (1) deny the dismissal, (2) grant the dismissal without prejudice and require Quick to pay the removal and attorney fees incurred in removing the action and resisting the motions, or (3) grant the dismissal with prejudice. Defendants also argue Quick's motion to remand should be denied.


A. Motion to Dismiss Federal Claims

Quick relies on Federal Rule of Civil Procedure 41(a), which allows for voluntary dismissal by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. See Fed.R.Civ.P. 41(a)(1)(A)(i).

Quick argues he filed his motion to dismiss prior to Defendants filing an answer to the amended complaint, and therefore he was within his rights to voluntarily dismiss the claim under Rule 41(a)(1)(A)(i). Quick asserts Defendants were not prejudiced because he filed the motion to dismiss one day after Defendants removed the case to federal court, and Defendants have spent no time and effort in defending the FMLA claim as evidence by Defendants refusal to provide information regarding FMLA issues during depositions conducted prior to the addition of the FMLA claim.

Defendants assert Quick's motion should be denied because Defendants answered Quick's original petition on October 16, 2006. Defendants argue once an answer was served, even to a prior pleading, Quick was foreclosed from dismissing his claim as a matter of right under Rule 41(a)(1)(A)(i). Defendants further argue Quick's attempt to manipulate the forum, by amending the complaint right before the deadline, mandates his motion be denied as Quick seeks dismissal merely to get the case in a more favorable forum.1

It appears the Eighth Circuit has not directly addressed the issue of whether filing an answer to an original complaint, but not to the amended complaint, is sufficient to preclude the plaintiff from voluntarily dismissing a claim as a matter of right pursuant to Rule 41(a)(1)(A)(i). In

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Armstrong v. The Frostie Company, however, the Fourth Circuit rejected the plaintiff's argument that he can voluntarily dismiss as a matter of right where the defendant filed an answer to the original complaint but not the amended complaint. See Armstrong v. The Frostie Co., 453 F.2d 914, 916 (4th Cir.1971). The Armstrong court explained,

Rule 41(a)(1)(A)(i) is designed to permit a disengagement of the parties at the behest of the plaintiff only in the early stages of a suit, before the defendant expended time and effort in the preparation of his case. Once the defendant has filed an answer or a motion for summary judgment, which normally is marked by extensive preparation, granting dismissal without prejudice becomes discretionary with the court.

Id. The Court finds the Armstrong rationale applies here.2 Quick lost his ability to voluntarily dismiss his claim as a matter of right under Rule 41(a)(1) when Defendants filed an answer to Quick's original petition.

Although the Court finds Quick is precluded from dismissing his claim under Rule 41(a)(1), the Court has the authority to dismiss the claim under Rule 41(a)(2), which states, " an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." The decision to grant or deny...

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