GALVA U. ELEVATOR CO. v. CHICAGO & NW TRANSP. CO.

• Decision Date: 15 August 1980
• Docket Number: No. C 80-4009.,C 80-4009.
• Citation: 498 F. Supp. 26
• Parties: GALVA UNION ELEVATOR COMPANY et al., Plaintiffs, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

498 F. Supp. 26

GALVA UNION ELEVATOR COMPANY et al., Plaintiffs, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant.

No. C 80-4009.

United States District Court, N. D. Iowa, W. D.

August 15, 1980.

David R. Crary, Sioux City, Iowa, for plaintiffs.

Frank W. Davis, Jr., Des Moines, Iowa, for defendant.

ORDER

O'BRIEN, District Judge.

The Court has before it defendant's motion to reconsider and defendant's resistance to motion for voluntary dismissal. The plaintiff in this matter had filed a motion for voluntary dismissal without prejudice on February 13, 1980. Thereafter the Court entered an order on February 15, 1980 sustaining plaintiffs' motion. The order by the Court was inadvertently entered prior to the time in which defendant could respond to plaintiffs' motion for dismissal. For this reason, the Court held an oral hearing on defendant's motions. After fully considering defendant's motions, the Court denies said motions. However, the Court does grant the defendant certain relief as further discussed herein.

This matter was initially filed in the Iowa District Court for Ida County, and thereafter defendant removed this matter to this Court. Plaintiffs' petition sets forth eight counts. Defendant's petition for removal alleged two separate and distinct jurisdictional bases—diversity of citizenship and an action arising under an act of Congress regulating commerce, i. e., the Interstate Commerce Act.

Plaintiffs filed their motion for voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(2), which provides in part:

Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper ... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Defendant asserts in its resistance to the motion for voluntary dismissal that plaintiffs desire voluntary dismissal in order to allow them to recommence this action in state court and add resident defendants to defeat this Court's diversity jurisdiction. Defendant further asserts that even if the plaintiffs were allowed to defeat this Court's diversity jurisdiction, this Court would still have original jurisdiction in that this case involves the Interstate Commerce Act. Defendant alleges by its removing this case to this Court, it has gained a tactical and legal advantage which it did not previously have in state court in that it will now have the opportunity to litigate important questions of federal law in a federal court.

The Court is cognizant of plaintiffs' desire to litigate the case in the court of their choosing. This Court is not in a position to order the plaintiffs to litigate their lawsuit in a court in which they have no desire in which to proceed. If this matter were refiled in state court and if diversity of citizenship between the parties was then not present, the theory of the defendant is that the federal court would still be the proper forum in which to litigate this matter as it would involve the Interstate Commerce clause which would give a federal court original jurisdiction over such a matter. The plaintiffs contest this and the Court is not going to speculate as to whether or not a federal court would have jurisdiction of this matter under those circumstances.

The Court believes that Rule 41(a)(2) is quite clear that the Court may enter an order dismissing an action without prejudice upon any "terms and conditions as the court deems proper." The Court believes that this provision provides the Court with the proper remedy in which to protect defendant. In 9 Miller & Wright, Federal Practice and Procedure: Civil, § 23366, the following appears at pages 178-9:

In imposing conditions the court is not limited to taxable costs, but may require the plaintiff to compensate for all the expense

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