UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLORIA DEAN; EUNICE ALDRIDGE; 

RICHARD F. ALDRIDGE; PHYLLIS

STEWART; CHARLES STEWART;

DOROTHY COOK; DWIGHT COOK;

SHARENA DEIHL; CAROLYN SUE

DELANEY; DEBRA DOVE; JAMES DOVE;

CAROLYN DURST; JO ANN KILLMON;

CHARLES KILLMON; DEBORAH

REDMAN; LESTER REDMAN; CAROLYN

RIDENOUR; IRVIN RIDENOUR; MELISSA

ROBIN; ROSE WOLF,

Plaintiffs-Appellees,

and

JOHN & JANE DOE, 1-500, State of  No. 01-1506 West Virginia; JOHN & JANE DOE,

501-550, State of West Virginia,

Plaintiffs,

v.

PILGRIM’S PRIDE CORPORATION,

Defendant-Appellant,

and

GILMER INDUSTRIES, INCORPORATED, a

Virginia corporation; ROLLINGER

ENTERPRISES, INCORPORATED, a

Virginia corporation; ESIS LOSS

CONTROL SERVICES, INCORPORATED,

Defendants. 
GLORIA DEAN; EUNICE ALDRIDGE; 

RICHARD F. ALDRIDGE; PHYLLIS

STEWART; CHARLES STEWART;

DOROTHY COOK; DWIGHT COOK;

SHARENA DEIHL; CAROLYN SUE

DELANEY; DEBRA DOVE; JAMES DOVE;

CAROLYN DURST; JO ANN KILLMON;

CHARLES KILLMON; DEBORAH

REDMAN; LESTER REDMAN; CAROLYN

RIDENOUR; IRVIN RIDENOUR; MELISSA

ROBIN; ROSE WOLF,

Plaintiffs-Appellees,

and

JOHN & JANE DOE, 1-500, State of

West Virginia; JOHN & JANE DOE,  No. 01-1514

501-550, State of West Virginia,

Plaintiffs,

v.

GILMER INDUSTRIES, INCORPORATED, a

Virginia corporation,

Defendant-Appellant,

and

PILGRIM’S PRIDE CORPORATION;

ROLLINGER ENTERPRISES,

INCORPORATED, a Virginia

corporation; ESIS LOSS CONTROL

SERVICES, INCORPORATED,

Defendants. 

2 DEAN v. PILGRIM’S PRIDE CORP.
GLORIA DEAN; EUNICE ALDRIDGE; 

RICHARD F. ALDRIDGE; PHYLLIS

STEWART; CHARLES STEWART;

DOROTHY COOK; DWIGHT COOK;

SHARENA DEIHL; CAROLYN SUE

DELANEY; DEBRA DOVE; JAMES DOVE;

CAROLYN DURST; JO ANN KILLMON;

CHARLES KILLMON; DEBORAH

REDMAN; LESTER REDMAN; CAROLYN

RIDENOUR; IRVIN RIDENOUR; MELISSA

ROBIN; ROSE WOLF,

Plaintiffs-Appellees,

and

JOHN & JANE DOE, 1-500, State of

West Virginia; JOHN & JANE DOE,  No. 01-1515

501-550, State of West Virginia,

Plaintiffs,

v.

ESIS LOSS CONTROL SERVICES,

INCORPORATED,

Defendant-Appellant,

and

PILGRIM’S PRIDE CORPORATION;

GILMER INDUSTRIES, INCORPORATED, a

Virginia corporation; ROLLINGER

ENTERPRISES, INCORPORATED, a

Virginia corporation,

Defendants. 

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CA-99-93-3)

DEAN v. PILGRIM’S PRIDE CORP. 3
Argued: December 5, 2001

Decided: December 19, 2001

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Kevin M. Rose, WHARTON, ALDHIZER & WEAVER,

P.L.C., Harrisonburg, Virginia, for Appellants. Michael Gene Hoehn,

Falls Church, Virginia, for Appellees. ON BRIEF: Glenn M. Hodge,

WHARTON, ALDHIZER & WEAVER, P.L.C., Harrisonburg, Virginia, for Appellant Pilgrim’s Pride; Gary A. Kalbaugh, Jr., James H.

Revere, III, KALBAUGH, PFUND & MESSERSMITH, P.C., Richmond, Virginia, for Appellant Gilmer Industries; Melissa W. Robinson, Victor S. Skaff, Monica L. Taylor, GENTRY, LOCKE, RAKES

& MOORE, L.L.P., Roanoke, Virginia, for Appellant ESIS. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Pilgrim’s Pride Corporation of Virginia, Gilmer Industries, Incorporated, and ESIS, Incorporated (collectively "the companies"),

appeal from an order dismissing a toxic-tort action against them. They

argue that the district court abused its discretion when it refused to

require the plaintiffs to refile only in Virginia. Finding no abuse of

discretion, we affirm. 

4 DEAN v. PILGRIM’S PRIDE CORP.
I.

On October 27, 1999, five plaintiffs, not purporting to represent a

class, filed a toxic-tort action against the companies and one other

defendant in the Western District of Virginia, claiming that chemicals

in the air at a chicken-processing plant in West Virginia had injured

them. Over the next nine months, fifteen more named plaintiffs joined

the suit, and the district court dismissed accompanying claims, filed

in the names of fictitious plaintiffs, for lack of standing. The parties

conducted some discovery, but took no depositions. 

On August 11, 2000, three days before the deadline for disclosure

of their expert witnesses, the plaintiffs moved for voluntary dismissal

under Federal Rule of Civil Procedure 41(a)(2). In relevant part, the

rule provides 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 specified in the

order, a dismissal under this paragraph is without prejudice." Fed. R.

Civ. P. 41(a)(2). The plaintiffs explained that they needed time for

additional investigation because new plaintiffs had recently joined the

case, and that their counsel needed more time to find co-counsel. 

After a magistrate judge recommended dismissal without prejudice

on a number of conditions, the district court granted it, imposing only

two of the recommended conditions: discovery in the dismissed

action would be used in any future actions, and the plaintiffs would

be liable to two defendants for up to $2000 in attorney fees, if they

lost a refiled action pursuant to Federal Rules of Civil Procedure 12

or 56. The court noted the relatively early stage of the litigation, and

particularly the absence of any pending motions for summary judgment, accepted plaintiffs’ good faith, citing their reasons for dismissal

other than evasion of an adverse ruling or simple neglect, and noted

that the companies would be able to use the discovery already conducted in any future case. Accordingly, the court refused to require

the plaintiffs to refile only in Virginia. 

II.

The companies contend that the district court abused its discretion

under Rule 41(a)(2) by refusing the requested condition. They argue

DEAN v. PILGRIM’S PRIDE CORP. 5
that they were prejudiced by loss of both a valid limitations defense,

under Virginia law, and a tactical advantage, the fast approaching

deadline for disclosure of expert witnesses. Having had the benefit of

oral argument and of the parties’ briefs, we conclude that the district

court did not abuse its discretion in deciding the issue before it. See

Metropolitan Federal Bank of Iowa v. W.R. Grace Company, 999

F.2d 1257, 1263 (8th Cir. 1993); McCants v. Ford Motor Co., 781

F.2d 855, 858-59 (11th Cir. 1986). Accordingly, we affirm on the reasoning of the district court.

AFFIRMED

6 DEAN v. PILGRIM’S PRIDE CORP.