Summary:       The Plaintiffs filed a motion to dismiss pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Court, in its discretion, granted the motion. In doing so, the Court found that a dismissal would not unfairly affect the Defendants at this early stage of the proceedings.


Case Name: Laverdure, et al. v Sky Dancer Casino, et al.

Case Number: A4-05-85

Docket Number: 13

Date Filed: 10/6/05

Nature of Suit: 440

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

NORTHWESTERN DIVISION
 

Steve Laverdure, Joe Turtle and other similarly situated persons,

Plaintiffs,

-vs-

Sky Dancer Casino, Andrew Decoteau, Wheeler Wolf Law Firm and Courtney Koebele,

Defendant.

 )
) ORDER GRANTING
) PLAINTIFFS’ MOTION
) TO DISMISS
)
) Case No. A4-05-85
)
)
)
)

             Before the Court is the “Plaintiffs’ Stay Request or Motion to Dismiss” filed on September 13, 2005. The Defendants have filed a response opposing the motion. For the following reasons the motion is granted.

 

I.          BACKGROUND

             It appears that plaintiffs Steve Laverdure and Joe Turtle were former employees at the Sky Dancer Casino in Belcourt, North Dakota. In 2003, Laverdure was ordered to undergo drug testing as a part of his employment. Laverdure filed suit in tribal court for alleged constitutional violations stemming from the required drug testing. This present lawsuit arises out of that tribal court litigation.

             On July 26, 2005, Laverdure and Turtle filed an action in the United States District Court for the District of North Dakota naming Sky Dancer Casino, Andrew DeCoteau, the Wheeler Wolf Law Firm, and attorney Courtney Koebele as defendants. In the complaint, the Plaintiffs raise numerous allegations arising under the Indian Gaming Regulatory Act and 25 U.S.C. § 1303. See Docket No. 1.

             On August 29, 2005, the Defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim for which relief can be granted under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. See Docket No. 6. Thereafter, on September 13, 2005, the Plaintiffs filed their “Stay Request or Motion to Dismiss.”

 

II.         LEGAL ANALYSIS

             Rule 41(a)(2) of the Federal Rules of Civil Procedure states in relevant part that “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 stated, dismissals under Rule 41(a)(2) are to be made without prejudice. Fed. R. Civ. P. 41(a)(2). It is well-established that “[m]otions to dismiss without prejudice are addressed to the sound discretion of the district courts.” Witzman v. Gross, 148 F.3d 988, 991-92 (8th Cir. 1998) (citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). In exercising its discretion a court should consider the following factors: “(1) the defendant’s effort and the expense involved in preparing for trial, (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, (3) insufficient explanation of the need to take a dismissal, and (4) the fact that a motion for summary judgment has been filed by the defendant.” Witzman, 148 F.2d 988, 992 (citing Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987)). These factors aside, the primary purpose of Rule 41(a)(2) is “to prevent involuntary dismissals which unfairly affect the other side.” Paulucci, 826 F.2d 780, 782. For that reason, “[i]f the motion is made at an early stage of the case, before much has happened and only limited resources have been invested, it is more likely to be granted.” 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2364, p. 290 (2d ed. 1995).

            The Plaintiffs have requested a dismissal because they “have decided to exhaust all possible tribal remedies” by filing a direct suit against the insurance company in tribal court. If successful, the Plaintiffs advise the Court that the current lawsuit will be unnecessary. The Defendants resist the motion based on the merit of their pending motion to dismiss.

             The Court, after careful consideration of all relevant factors, and in its discretion, concludes that a Rule 41(a)(2) dismissal is warranted. At this early stage of the proceedings, a dismissal will not “unfairly affect” the Defendants.

 

III.      CONCLUSION

            For the reasons set forth above, the Court GRANTS the Plaintiffs’ Motion to Dismiss. (Docket No. 8). The Court ORDERS that the case be dismissed without prejudice.

            IT IS SO ORDERED.

            Dated this 6th day of October, 2005.

 

                                                                        ________________________

                                                                        Daniel L. Hovland, Chief Judge

                                                                        United States District Court