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Gravely v. Doe

United States District Court, W.D. Virginia, Roanoke Division

March 5, 2019

KATRINA ANNE GRAVELY and LUTHER DEAN GRAVELY, Plaintiffs,
v.
JANE DOE #1; JOHN DOE #1; JANE DOE #2; JOHN DOE #2; FLOYD COUNTY DEPARTMENT OF SOCIAL SERVICES; TRACY BREWSTER; DAVID HOPE; FIRST HOME CARE; DEPAUL FAMILY SERVICES; and COURT APPOINTED SPECIAL ADVOCATES OF THE NEW RIVER VALLEY CASA OF THE NRV, Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         There are a number of motions pending before the court. At this junction, though, the primary question for the court is whether to dismiss this case without prejudice, as requested by plaintiffs, or to address the substantive motions to dismiss with prejudice filed by various defendants. As discussed in more detail below, consideration of the proper factors leads the court to conclude that a dismissal without prejudice of this case is appropriate. Thus, the court will grant the plaintiffs' motions to voluntarily dismiss all defendants without prejudice and will deny all other motions in this case as moot.

         I. BACKGROUND

         This case stems from the emergency removal of a minor child from the custody of plaintiffs Katrina Anne Gravely and Luther Dean Gravely and the subsequent custody proceedings. Plaintiffs allege that, while in foster care, the child suffered injuries for which they seek to hold defendants responsible. Plaintiffs filed a civil action in the Botetourt County Circuit Court containing five separate counts for (1) gross negligence; (2) defamation; (3) violation of plaintiffs' First and Fourteenth Amendment rights under the United States Constitution; (4) common law conspiracy; and (5) wrongful/tortious interference with parental/custodial rights. Plaintiffs named as defendants Floyd County Department of Social Services, Tracy Brewster, David Hope, First Home Care, DePaul Family Services, and Court Appointed Special Advocates of the New River Valley (CASA of the NRV) (collectively, the defendants). Plaintiffs also list John Does 1 and 2 and Jane Does 1 and 2 as additional defendants. Defendants removed the case to this court, invoking the court's federal-question jurisdiction over plaintiffs' claim brought pursuant to 42 U.S.C. § 1983 claim and supplemental jurisdiction over plaintiffs' state law claims.

         After removal, many of the defendants filed motions to dismiss for a number of reasons. Notably, defendant DePaul moved to dismiss plaintiffs' complaint against it on the grounds that no claim is asserted against DePaul. (DePaul Mem. Supp. Mot. to Dismiss 1, Dkt. No. 11.) DePaul also sought dismissal of all of the claims for failing to meet the Rule 8 pleading requirements and to dismiss any claim under 42 U.S.C. § 1983 because DePaul is not a state actor and did not act under the color of state law. (Id. at 2.) Additionally, Defendants Floyd County Department of Social Services, Tracy Brewster, and David Hope (collectively the “FCDSS defendants”) moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. (FCDSS Defs.' Mem. Supp. Mot. to Dismiss 1, Dkt. No. 19.) The FCDSS defendants also moved to dismiss all claims against them on the grounds that the court lacks subject matter jurisdiction. (FCDSS Defs.' Mem. Supp. Second Mot. to Dismiss 1, Dkt. No. 21.) Defendants all seek dismissal with prejudice.

         In response to defendants' various motions to dismiss, plaintiffs voluntarily moved to dismiss Count Three of their complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). (Pls.' Mot. to Dismiss 1, Dkt. No. 22.) Count Three alleges violations of plaintiffs' constitutional rights and is brought pursuant to 42 U.S.C. § 1983. It is the only federal claim in the complaint. (Id.) Relatedly, plaintiffs asked the court to abstain from exercising supplemental jurisdiction over the remaining claims and to remand this case back to the Circuit Court for Botetourt County, Virginia. (Id. at 1-2.)

         The FCDSS defendants, joined by DePaul, oppose plaintiffs' motion on the grounds that Rule 41 permits dismissal only of an entire action, not individual claims or counts. (Defs.' Opp'n. to Pls.' Mot. Dismiss 1-2, Dkt. No. 28.) Defendants urge the court to exercise supplemental jurisdiction over the remaining state law claims, arguing that the motion for voluntary dismissal and motion to remand are “clear examples of forum shopping.” (Id. at 4-6.)

         Plaintiffs also filed two separate motions to dismiss all of the defendants without prejudice. In the first, they moved to voluntarily dismiss this action against defendants John Does 1 and 2, Jane Does 1 and 2, DePaul, and CASA pursuant to Federal Rule of Civil Procedure 41(a)(1), on the grounds that none of those defendants had filed either an Answer or a Motion for Summary Judgment.[1] (Pls.' Voluntary Dismissal of Does 1-2, DePaul, and CASA 1, Dkt. No. 38.) In the second, plaintiffs asked to voluntarily dismiss this action against the remaining defendants (the FCDSS defendants and First Home Care) under Rule 41(a)(2), “said Defendants being the only remaining Defendants in this cause following Plaintiffs' voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1).” (Pls.' Voluntary Dismissal of Floyd Cty. DSS, Brewster, Hope, and First Home Care 1, Dkt. No. 39.)

         Defendants oppose any dismissal without prejudice. Their reasons are discussed in context infra at Section II. Defendants request instead that this court consider the merits of their pending motions to dismiss.

         II. DISCUSSION

         The first question before the court is whether to grant plaintiffs' motions to voluntarily dismiss all defendants without prejudice. While the plaintiffs filed two motions to dismiss, under both Rule 41(a)(1) and 41(a)(2), combined they seek dismissal of all defendants. Thus, the court construes the motions as seeking to dismiss the entire action under Rule 41(a)(2).

         Rule 41(a)(2) of the Federal Rules of Civil Procedure states that “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). “Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.” Id. The Fourth Circuit has clarified that “[i]t is implicit in this language that the district court may dismiss the plaintiff's action either without prejudice or, by so specifying, with prejudice.” Choice Hotels Int'l., Inc. v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir. 1993) (citing Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986)). However, “[a]s a general rule, a plaintiff's motion for voluntary dismissal without prejudice under Rule 41(a)(2) should not be denied absent plain legal prejudice to the defendant.” Gross v. Spies, 133 F.3d 914, at *6 (4th Cir. 1998) (citations omitted) (unpublished table disposition). The factors the court must consider in ruling on a motion under Rule 41(a)(2) are:

(1) the opposing party's effort and expense in preparing for trial;
(2) excessive delay or lack of diligence on the part of the ...

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