Walther v. Florida Tile, Inc., 060619 FED6, 18-3747

Docket Nº:18-3747
Party Name:JAMES WALTHER, Plaintiff-Appellee, v. FLORIDA TILE, INC., Defendant-Appellant.
Judge Panel:BEFORE: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.
Case Date:June 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

JAMES WALTHER, Plaintiff-Appellee,


FLORIDA TILE, INC., Defendant-Appellant.

No. 18-3747

United States Court of Appeals, Sixth Circuit

June 6, 2019



BEFORE: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge. [*]


Defendant Florida Tile, Inc. argues the district court abused its discretion by granting Plaintiff James Walther's motion to voluntarily dismiss pursuant to Federal Rule of Civil Procedure 41(a)(2) without prejudice and without imposing any conditions on the dismissal. For the reasons below, we

AFFIRM the district court's order.


Florida Tile employed Walther for nearly 26 years, from 1991 until his termination on April 7, 2017. Two months prior to his termination, Walther's supervisor, Jason Tackett, called him into a meeting. Walther secretly recorded the conversation. Walther claims that, during the meeting, Tackett presented him with a Hobson's choice: resign now, so that Florida Tile would not have to pay Walther unemployment benefits, or face a pretextual termination. Florida Tile disputes the veracity of Walther's recounting of the meeting and claims Walther altered the recording.

When Walther reported his meeting with Tackett to Florida Tile's Human Resources Department, he did not disclose to Human Resources that he had recorded the conversation. A month later, Walther reported the incident to the Montgomery County Sheriff's Department and the Miami Township Police Department. Again, he did not disclose that he had recorded the conversation.

Florida Tile terminated Walther from employment two months after his meeting with Tackett. Florida Tile claims Walther was terminated due to "ongoing poor sales, poor job performance, and failure to meet expectations in his performance improvement plan." (Appellant's Brief at 3).

Walther filed suit in the Montgomery County, Ohio Court of Common Pleas, claiming retaliatory discharge from employment in violation of Ohio Rev. Code § 4113.52. Walther alleged entitlement to multiple remedies, including compensatory damages, consequential damages, punitive damages, and attorneys' fees and costs.

Following removal to federal court, Walther filed a Motion for Temporary Restraining Order and Preliminary Injunction against Florida Tile. Walther claimed Tackett called Walther's new employer approximately one month after Walther filed his complaint in state court, and attempted to call Walther's prospective employers on at least four other occasions. He accordingly requested an order requiring Florida Tile to refrain from interfering with Walther's employment. The district court, finding that Walther failed to show a likelihood of irreparable harm in the absence of an injunction, denied the motion for temporary restraining order and vacated the hearing on the motion for preliminary injunction.

After a failed attempt at mediation, the parties agreed to suspend discovery while continuing to engage in settlement discussions. The parties had engaged in limited discovery prior to mediation.1

Two weeks after the unsuccessful mediation, Walther provided Florida Tile with a proposed amended complaint containing new causes of action and requested Florida Tile's consent for leave to file the amended complaint. Florida Tile refused.

The following week, Florida Tile produced Tackett's personnel file and Walther produced his police report. Walther alleges that, upon reviewing Tackett's personnel file, Walther ascertained the need to add Tackett as a defendant and to add new claims. Because Tackett was a citizen of Ohio, joining him as a defendant would have destroyed diversity of citizenship. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806).

Two days later, Walther requested that Florida Tile stipulate to Walther's voluntary dismissal of his claims without prejudice. Florida Tile refused.

Within five days, however, Florida Tile submitted to Walther an Offer of Judgment under Fed.R.Civ.P. 68, offering reinstatement, $105, 000 in back pay plus interest, and attorneys' fees and costs up to the date of the offer. Walther rejected the offer and claims to have done so because it precluded him from pursuing additional claims against Florida Tile and Tackett, and Walther did not want to be reinstated as a Florida Tile employee.

The following week, but five months after the time to do so had passed, Florida Tile filed a Motion for Partial Judgment on the Pleadings under Fed. R. Civ. P 12(c), arguing Ohio Rev. Code § 4113.52 did not permit Walther to collect for compensatory damages, emotional distress damages, consequential damages, punitive damages, or any other monetary damages other than back wages or fringe benefits as referenced by the statute. Florida Tile also filed a motion requesting "retroactive approval of leave for Defendant's April 13, 2018 filing of its Motion for Partial Judgment on the Pleadings." (R.35, Florida Tile's Motion for Instanter Leave to File 12(c) Motion, PageID # 311).

A week later, Walther filed motions to voluntarily dismiss without prejudice and stay Florida Tile's partial motion to dismiss. Soon thereafter, Walther filed a second motion to stay.

In support of his motion to voluntarily dismiss without prejudice, Walther argued dismissal without prejudice was proper because the factors set forth in Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994) support dismissal under Fed.R.Civ.P. 41(a)(2). In opposition, Florida Tile argued Walther was not entitled to dismissal without prejudice because Walther had not acted diligently in litigating the case, no good reason existed to warrant dismissal without prejudice, Walther was attempting to "wipe the slate clean and start all over" to avoid an adverse result, and substantial discovery had taken place. (R.33, Opposition to Walther's Motion to Voluntarily Dismiss, PageID # 261). In the alternative, Florida Tile argued Walther should be required to pay Florida Tile attorneys' fees and costs not directly reusable in subsequent litigation and return Florida Tile's confidential documents as conditions of dismissal without prejudice.

The district court, after referring the matter to a...

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