Not for P ublication in West's Fe deral Reporter



# U nitedStates C ou rt of App eal s

For th e Firs t C ircu it

No. 09-2443

JRA ARCHITECTS & PROJECT MANAGERS, P.S.C., ET AL.,

Plaintiffs, Appellees,

v. FIRST FINANCIAL GROUP, INC., ET AL.,

Defendants,

_____________________ NILSA ORTÍZ-ALVARADO, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

Before Lipez, Howard and Thompson, Circuit Judges.

Alfredo Castellanos, Dayra Amill-Acosta and Castellanos &Castellanos Law Firm, P.S.C., on brief for appellant Nilsa OrtízAlvarado. Jorge J. Oppenheimer-Méndez, Oppenheimer-Soltero Retirement Plan Trust and Julie Soltero-Rinaldi on brief for appellees.

May 21, 2010Ortíz filed an answer in both cases and a motion for summary 1 judgment in the JRA case. -2-

Per Curiam
. This appeal arises from the district court's allowance of the plaintiffs' voluntary dismissal--without prejudice and without any conditions--of the complaints in two consolidated cases. The sole a p p e l lant, Nilsa Ortíz-Alvarado ("Ortíz"), is a defendant in both cases.

Where, as here, a defendant has answered the complaint or

mo v e df o r s u mm a r yj u d g m e n t , a p l a i n t i f f c a n n o t u n i l a t e r a l ly 1 dismiss an action without court approval "on terms that the court considers proper." F e d
. R . Civ. P. 41(a)(2). The purpose of requiring such approval is to ensure that "'no other party will be prejudiced.'" Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000) (quoting P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir. 1981)). A c c ordingly, in ruling on a motion for voluntary dismissal, "[t]he district court is responsible . . . for

exe r c i s i ng its discretion to ensure that such prejudice will not occur." Id.

In exercising that discretion, "courts typically look to 'the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant.'" Id. (quoting Pace v. S. Express-3-

Co., 409 F.2d 331, 334 (7th Cir. 1969)). Although "courts need not analyze each factor or limit their consideration to these factors," id. (citing Tyco Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980)), they serve as "a guide for the trial judge, in whom the discretion ultimately rests." Tyco, 627 F.2d at 56.

This court's review of a district court's approval of a voluntary dismissal is for abuse of discretion, Doe, 216 F.3d at 160, which can occur not only by failing to consider a significant factor, relying on an improper factor, or making a serious mistake in weighing the applicable factors, but also by failing to exercise its discretion at all. Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 166 (1st Cir. 2009) (so ho l d i n g w ith respect to a discre t i o n a ry award of attorneys' fees). Where, as here, the district court provides no explanation for d i s missing a case without prejudice and without imposing any conditions on the moving party, such as paying the opposing par t y ' s attorneys' fees or costs, and no reason for doing so is apparent from the record, this
court cannot assess whether an abuse of discretion has o c c u r red. Bridgeport Music, Inc. v. Universal-MCA Music Publ'g, Inc., 481 F.3d 926, 930-931 (6th Cir. 2007); Conafay by Conafay v. Wyeth Labs., 793 F.2d 350, 354 (D.C. Cir. 1986). Indeed, "the best we can do [under those circumstances] is to conclude that the district court abused its discretion by not exercising it," Janney, 571-4-

F.3d at 166, and to remand for explicit consideration of the appropriate factors, Urohealth, 216 F.3d at 163.

If, inste a d , t he district court had provided "some indication" of its reasons for rejecting Ortíz's colorable arguments for dismissing the case wit h , rather than without, prejudice or for imp o s ing conditions on the dismissal to ensure that she is not unduly prejudiced by the dismissal, then remand would not be required. Bridgeport Music, 481 F.3d at 931; In re Bayshore Ford Truck Sales, Inc., 471 F.3d 1233, 1259 (11th Cir. 2006). Citing relevant fac t o r s - -her considerable expense in actively de f e n ding the cases, the plaintiffs' relative lack of diligence, the pendency of dispositive motions in both cases, and the inadequacy of the plaintiffs' reasons for seeking dismissal-- Ort í z a r gued below that the cases should be dismissed with prejudice or with conditions, and she presses those a r g u m e nts on appeal. Those arguments may, or may not, be s o u n d in the circumstances of these cases, and other factors may weigh in favor of di s m issal without prejudice or conditions. But the district court, wh i c h w as actively involved in the management of these complex cases, i s in a better position to apply and weigh such factors, at least in the first instance.

The voluntary dismissals are vacated, and the case is remanded to the district court for further proceedings. Each party shall bear its own costs.