U.S. v. One Tract of Real Property Together With all Bldgs., Improvements, Appurtenances and Fixtures

• Citation: 95 F.3d 422
• Decision Date: 10 September 1996
• Docket Number: 95-5664,Nos. 95-5612,s. 95-5612
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. ONE TRACT OF REAL PROPERTY TOGETHER WITH ALL BUILDINGS, IMPROVEMENTS, APPURTENANCES, AND FIXTURES, thereon and thereto, situated in District Three of Monroe County, Tennessee, consisting of Lot 18 and Part of Lot 19, in what is known as Sherrill Heights Addition, with an Address of 266 Tonawanda Trail, known as the Residence of J.C. O'Dell, Defendant, Jackson C. O'Dell, Claimant-Appellee, Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 422

95 F.3d 422

35 Fed.R.Serv.3d 1296

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. ONE TRACT OF REAL PROPERTY TOGETHER WITH ALL BUILDINGS,

IMPROVEMENTS, APPURTENANCES, AND FIXTURES, thereon and

thereto, situated in District Three of Monroe County,

Tennessee, consisting of Lot 18 and Part of Lot 19, in what

is known as Sherrill Heights Addition, with an Address of

266 Tonawanda Trail, known as the Residence of J.C. O'Dell, Defendant,

Jackson C. O'Dell, Claimant-Appellee, Cross-Appellant.

Nos. 95-5612, 95-5664.

United States Court of Appeals,

Sixth Circuit.

Argued Sept. 5, 1996.

Decided Sept. 10, 1996.

Steven Hollingshead-Cook, Asst. U.S. Attorney (argued and briefed), Robert E. Simpson, D. Gregory Weddle, Asst. U.S. Attorneys, Office of the U.S. Attorney, Knoxville, TN, Carl K. Kirkpatrick, U.S. Attorney, Office of the U.S. Attorney, Chattanooga, TN, for the U.S.

Herbert S. Moncier (briefed), David S. Wigler (argued and briefed), Knoxville, TN, for Jackson C. O'Dell.

Ralph E. Harwell, Harwell, Baumgartner & Willis, Knoxville, TN, for Lois A. O'Dell.

Before: LIVELY, KENNEDY, and SILER, Circuit Judges.

KENNEDY, Circuit Judge.

The United States appeals an order of the District Court dismissing with prejudice this civil forfeiture action after the government had moved for voluntary dismissal without prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure. Claimant cross-appeals the District Court's same order which refused to compel the United States to grant claimant's request for admissions. We also consider on this appeal claimant's motion for sanctions against an Assistant United States Attorney. For the following reasons, we AFFIRM in part, VACATE in part, and REMAND. We also DENY claimant's motion for sanctions.

I. Facts

This appeal arises out of a civil forfeiture action that was filed against claimant's residence after the United States discovered a marijuana growing operation during the execution of federal search warrants at claimant's farm. ¹ The United States also entered into a plea agreement with claimant and filed a one-count information charging claimant with manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). Claimant entered a guilty plea pursuant to the agreement. Assistant United States Attorney ("AUSA") Steven H. Cook has been handling the government's criminal actions against claimant, while other attorneys were involved with this civil forfeiture action in the District Court. ² An appeal in the criminal action, United States v. O'Dell, No. 3-94-164 (E.D.Tenn. Sept. 21, 1995), appeal docketed, Nos. 95-6414/6415 (6th Cir. Oct. 30, 1995), was consolidated with the instant appeal for the purpose of oral argument.

On December 13, 1994, claimant filed a motion asking the District Court to enter partial summary judgment for the United States in the civil forfeiture action pending against his home. Subsequently, the government filed a motion to dismiss the complaint without prejudice. Claimant opposed the government's motion to dismiss without prejudice in documents filed with the District Court on January 13 and 24, 1995. Additionally, claimant filed "Proposed Findings of Fact and Conclusions of Law" the day before the District Court's hearing on the two pending motions. In essence, claimant argued that AUSA Cook misled the District Court in the criminal proceeding and that this alleged misconduct justified as a remedial measure the dismissal of the civil complaint with prejudice. In the alternative, claimant proposed that the District Court dismiss the complaint without prejudice but only under certain conditions.

Problems had indeed arisen with respect to the plea in the criminal action. The plea agreement was expressly conditioned on claimant's father and sons pleading guilty to specific offenses in state court. If such action was taken, then the United States agreed not to bring federal charges against claimant's relatives. If such action was not taken, however, the United States would be "free from its obligations under this plea agreement and also [would] be free to withdraw." Claimant's family members reached an impasse with state officials and did not fulfill the conditions of the plea agreement. The District Court permitted the government to withdraw from the agreement, claimant withdrew his guilty plea and, on the government's motion, the District Court dismissed the information without prejudice. A federal grand jury subsequently returned a four-count indictment against claimant, including a criminal forfeiture count seeking forfeiture of the same residence involved in this civil forfeiture action. ³ The government has not brought any criminal charges against claimant's father or sons.

After the United States moved to dismiss without prejudice this civil forfeiture action, claimant filed a request for admissions:

1. Admit that on or about February 9, 1994, when [AUSA] Steve H. Cook filed a pleading in Cr. 3-93-82 denominated "Notice of Failure to Comply with Plea Agreement," AUSA Cook did not intend to ask the federal grand jury to indict [claimant's father or either of his sons].

2. Admit that on or about October 17, 1994, when [AUSA] Cook filed a Motion to Dismiss the Information in Cr. 3-93-82 without prejudice, AUSA Cook did not intend to ask the federal grand jury to indict [claimant's father or either of his sons].

3. Admit that on or about December 6, 1994, when [AUSA] Cook did ask the federal grand jury to return the Indictment in Cr. 3-94-164, he did not ask the grand jury to indict [claimant's father or either of his sons].

Claimant also served a subpoena on AUSA Cook compelling his presence at the hearing which had been scheduled to address claimant's motion for partial summary judgment and the government's motion to dismiss.

On February 28, 1995, the District Court heard arguments regarding the pending motions and claimant's discovery request. After claimant invited the court to rule on the government's motion first, the District Court "granted" the government's motion, but ordered the complaint dismissed with prejudice. The court's apparent reason for this decision was that it "appreciate[d] the fact that [claimant] has been exposed to litigation in this case since 1991, and the government comes in here and says they want to take a voluntary nonsuit under Rule 41." ⁴

With regard to the discovery request, the government argued that the information sought was irrelevant to the civil proceeding, privileged, and protected by Rule 6(e) of the Federal Rules of Criminal Procedure. The government told the court, however, that AUSA Cook was "fully able and willing to answer [the] court's questions in camera, ex parte, about his intentions and the charging decisions that were made in any presentation made before a federal grand jury." The District Court quashed the subpoena and ordered that the United States would not be compelled to grant the discovery request or to respond further to the request for admissions. In denying the request, the court found that Rule 6 prohibited such discovery and that "these cases have progressed pretty much as [the court] would have anticipated due to the extended plea negotiations."

II. Discussion

A. The Government's Appeal

The government argues that the District Court erred when, in response to its motion to dismiss without prejudice, it dismissed the action with prejudice.

Rule 41(a) of the Federal Rules of Civil Procedure provides for the voluntary dismissal of actions at a plaintiff's request. Rule 41(a)(2) provides in pertinent part that

[e]xcept 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.

FED. R. CIV. P. 41(a)(2) (emphasis added). ⁵ Thus, the last sentence of Rule 41(a)(2) implicitly permits the district court to dismiss an action with prejudice in response to a plaintiff's motion to dismiss without prejudice. Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir.1995); Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir.1993); Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir.1986). This court reviews a district court's decision regarding a Rule 41(a)(2) motion for an abuse of discretion. DWG Corp. v. Granada Invs., Inc., 962 F.2d 1201, 1202 (6th Cir.1992).

We agree with the courts of appeals which have considered this issue that three factors must be considered in determining whether a court abused its discretion when it dismissed a complaint with prejudice in response to a plaintiff's request for dismissal without prejudice. See, e.g., Jaramillo, 59 F.3d at 79; Marlow v. Winston & Strawn, 19 F.3d 300, 304-05 (7th Cir.1994); Andes, 788 F.2d at 1037. First, the district court must give the plaintiff notice of its intention to dismiss with prejudice. Jaramillo, 59 F.3d at 79; Andes, 788 F.2d at 1037. Second, the plaintiff is entitled to an opportunity to be heard in opposition to dismissal with prejudice. Jaramillo, 59 F.3d at 79; Andes, 788 F.2d at 1037. Third, the plaintiff must be given an opportunity to withdraw the request for voluntary dismissal and proceed with the litigation. Jaramillo, 59 F.3d at 79; Marlow, 19 F.3d at 305; Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d Cir.1988). ⁶ This third requirement is essential because, unlike a dismissal without prejudice, a dismissal with prejudice operates as a rejection of the plaintiff's claims on the merits and res judicata precludes further litigation. Jaramillo, 59 F.3d at 79.

The government argues that none of these requirements were met. We question the government's position that it did not have an opportunity to argue against a dismissal with prejudice. The government knew that claimant had requested, in some of his filings, that...