# In the United States Court of Federal Claims

No s

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- 591L and 01

- 5910L t hrough 01

- 59125 L

(Filed: May 1 4 , 2014 )

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KLAMATH IRRIGATION DISTRICT, et al.,

Plaintiff s ,

v.

THE UNITED STATES

,

Defendant,

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS,

Defendant

- Intervenor. *

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* RCFC 41(a)(2)

– voluntary dismissal; Determining whether dismissal should be with or without prejudice; Multi

- factored test; Dismissal with prejudice to be accompanied by a condition, as authorized by RCFC 41(a)(2).

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OPINION and ORDER

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Nancie G

. Marzulla and Roger J. Marzulla

, Marzulla Law, LLC

, Washington, DC

, for

p laintiff s

.

Kristine Sears Tardiff

, Environmental and Natural Resources D ivision, United States Department of Justice, Concord, Ne w Hampshire , with whom was Assistant Attorney General

I

gnacia S. Moreno , for defendant

.

Todd D. True, Earthjustice Legal Defense Fund , Seattle, WA, for Defendant

- Intervenor.

ALLEGRA, Judge:

Plaintiffs seek to dismiss their Third Claim for Relief

, without prejudice

, in accordance with RCFC 41(a)(2).Plaintiffs initially brought this case in 2001, seeking just compensation under the Fifth Amendment and damages for a breach of the Klamath Basin Compact. On March 24, 2003, plaintiffs filed their f irst amended complaint, adding a breach of contract claim. In 2005, the court entered summary judgment in favor of defendant on the takings and Klamath Compact

claims. Klamath Irr. Dist. v. United States , 67 Fed. Cl. 504 (2005). In 2007, the court enter ed summary judgment in favor of defendant on the contract claims. Klamath Irr. Dist. v. United

States , 75 Fed. Cl. 677 (2007). On appeal, the Federal Circuit certified a set of state law questions to the Supreme Court. Klamath Irr. Dist. v. United State s , 532 F.3d 1376 (Fed. Cir. 2008). The Oregon Supreme Court issued its opinion on the certified questions in 2010.

Klamath Irr. Dist. v. United States , 227 P. 3d 1145 (Or. 2010) (en banc). On February 17 , 2011,

the Federal Circuit vacated the judgments of this court and remanded the case back to this court for further proceedings

. Klamath Irr. Dist. v. United States , 635 F.3d 505 (Fed. Cir. 2011). On remand, defendant moved to dismiss the complaint under 28 U.S.C. § 1500, relying upon the Supreme Court ’s ruling in United States v. Tohono O’Odham Nation , 131 S. Ct. 1723 (2011). On November 22, 2013, this court dismissed the breach of contract claims for three plaintiffs

– Klamath Irrigation District, Tulelake Irrigation District, and Lon ny E. B a ley

– but otherwise

denied defendant’s motion. Klamath Irr. Dist. v. United States , 113 Fed. Cl. 688 (2013).

Subsequently, at plaintiffs ’ request, the court ordered additional discovery in this matter. On January 31, 2014, plaintiffs , as they previously had advised they would do, moved to dismiss their contract claims, with a request that the dismissal be without prejudice under RCFC 41(a)(2). On February 12, 2014, defendant filed a response to plaintiffs’ motion indicating that it did not oppose the dis missal of the contract claims, but believed that the dismissal should be with prejudice. On February 24, 2014, plaintiffs filed their reply to defendant’s response. Argument is deemed unnecessary.

Under RCFC 41, if an answer or a motion for summary jud gment has been served, a plaintiff relinquishes the right to dismiss its case unilaterally

. Unless all the parties stipulate to the dismissal, RCFC 41(a)(2) instead obliges the plaintiff to move for an order of dismissal. Mission Essential Personnel, LLC v. United States , 104 Fed. Cl. 170, 174 (2012)

. In the latter instance, the dismissal is within the discretion of the court , which possesses considerable latitude in determining not only whether to dismiss the case, but w hether the dismissal should be wi th prejudice vel non and be accompanied by conditions. See Elbaor v. Tripath Imaging, Inc. , 279 F.3d 314, 317 (5 th Cir. 2002); D’Alto v. Dahon Cal., Inc. , 100 F.3d 281, 283 (2d Cir. 1996) ; Williams v. Peralta Community College Dist. , 227 F.R.D. 538 , 539 (N.D. Cal. 2005)

. “[J]udicial approval is required to ‘protect the nonmovant from unfair treatment.’” Doe v. Urohealth Sys.,

Inc. , 216 F.3d 157, 160 (1 st Cir. 2000) (quoting Grover v. Eli Lilly & Co. , 33 F.3d 716, 718 (6 th

Cir. 1994).); see also Freeman v. United States , 98 Fed. Cl. 360, 368 (2011). Consistent with

this view , i t is well

- accepted that , under RCFC 41(a)(2), the court may impose curative terms
and conditions on the dismissal. See also Mission Essential Personnel , 104 Fed. Cl. at 174; Whyde v. United States , 51 Fed. Cl. 635, 637 (2002).

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-Courts have employed a variety o f formulations in determining whether a dismissal without prejudice is appropriate in a given case

. 1 In this court , three factors tend to predominate : (i) the burden o n the defendant if the case were to be dismissed without prejudice; (ii) the progress of the litigation; and (iii) the diligence and good faith of the plaintiff. Freeman , 98 Fed. Cl. at 368; Standard Space Platforms Corp. v. United States , 38 Fed. Cl. 4 61 , 466 (1997); Deuterium Corp. v. United States , 21 Cl. Ct. 132, 134 (1984) ; see also Whyde , 51 Fed. Cl. at

637

. Under the first factor, the court may consider the impact on defendant if the dismissal is not sought until a fter the defendant has exerted sig nificant time and effort. See Freeman , 98 Fed. Cl.

at 368 ; Whyde , 51 Fed. Cl. at 637; see also Wright & Miller, supra , at § 2364 (“[I]n exercising its discretion under Rule 41(a)(2), the trial court will consider the expense that has been incurred prior to the motion and any inconvenience that might be imposed on the defendant.”). The second factor focuses on the stage of the litigation, recognizing that while “ there is no hard and fast rule as to timing,” id.

, a late r dismissal is more likely to occasion prejudice. See Fala Corp.

v. United States , 53 Fed. Cl. 90, 92 (2002) ; Deuterium , 21 Cl. Ct. at 136

. Finally, t he l ast of the

three factors looks to w hether there is any evidence of neglect

, purposeful delay or other pursuit of tactical advantage by a plaintiff , thereby requiring the court to probe the reasons why the dismissal is being sought. Wh yde , 51 Fed. Cl. at 637; see also Walter Kiddle Portable Equip. Inc. v. Universal Sec. Instruments, Inc. , 479 F.3d 1330, 1337 (Fed. Cir. 2007); Wright & Miller

, supra , at § 2364

.

On some levels

, the extended procedural history of this case might seem to make the determination here complicated. At bottom, however, both sides agree that the contract claims

should be dismissed. The differences appear to be based on the slight possibility that some form

of the contract claims will be refiled

. Plaintiffs seek to reserve that possibility, w hile recognizing that it is unlikely to occur , particularly given the potential statute of limitations bar that may apply ; d efendant , for its part, prefer s to eliminate th e possibility of refiling altogether, to avoid

the risk of its having to incur any further costs in defending against the contract claims. Importantly, there is no indication that plaintiffs have , in any way, delay ed their pursuit of these

contract claims . Nor is there any real indication th at plaintiffs seek an untoward tactical advantage

.

In the court’s view, th e dispute here is be st resolved by considering whether terms should be imposed on a dismissal without prejudice, as is envisioned by RCFC 41(a)(2). In this regard,

the co urt is prepared to dismiss the contract claims without prejudice, provided plaintiffs are willing to agree that if those claims are refiled as part of a new lawsuit in this court , unrelated to the instant case, plaintiffs will reimburse defendant for the c osts it previously incurred in

defend ing against those claims. T he imposition of such conditions is not unusual in a case as

1 See Wells Fargo Bank, N.A. v. Younan Properties, Inc. , 737 F.3d 465, 468

- 69 (7 th Cir. 2013) ; Urohealth Sys., Inc. , 216 F.3d at 160; D’Alto , 100 F.3d at 283; In re Paoli R.R. Yard PCB Litig. , 916 F.2d 829 (3d Cir. 1990), cert. denied , 499 U.S. 961 ( 1990 ); Johnson v. Wynne , 239 F.R.D. 283, 285

- 86 (D.D.C. 2006); see also 9 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2364 (3d. ed. 2008) (hereinafter “Wright & Miller”)

.

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-advanced as this

. See Pontenberg v. Boston Scientific Corp ., 252 F.3d 1253, 1260 (11th Cir. 2001); Duffy v. Ford Motor Co ., 218 F.3d 623, 628 (6 th Cir. 2000); Belle

- Midwest, Inc. v. Missouri Prop. & Cas. Ins. Guarantee Ass ’ n , 56 F.3d 977, 978

- 79 (8 th Cir. 1995); Hart v. Globe Life & Acc. Ins. Co ., 2009 WL 1872529 , at *2 (E.D. Mo. June 29, 2009); Gonzales v. City of Topeka Kansas , 2 06 F.R.D. 280, 284 (D. Kan. 2001)

.

Accordingly, on or before June 10, 2014, plaintiffs shall file a notice with the court indicating whether they are amenable to the condition pr e s crib ed above. If they are amenable,

the court will then dismiss the c ontract claims without prejudice.

IT IS SO ORDERED

.

s/ Francis M. Allegra Francis M. Allegra

J udge

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