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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANDREW MORAN, et al., : Case No. 1:18-cv-223

 :

Plaintiffs, : Judge Timothy S. Black 

vs. :

 :

RUAN LOGISTICS, et al., : 

 :

Defendants. :

ORDER GRANTING PLAINTIFFS’ MOTION TO

VOLUNTARILY DISMISS WITHOUT PREJUDICE (DOC. 108)

This civil action is before the Court on Plaintiff’s motion to voluntarily dismiss 

without prejudice pursuant to Fed. R. Civ. P. 41(a)(2) (Doc. 108) and the Defendants’ 

responsive memorandum (Doc. 109).

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I. BACKGROUND AND PROCEDURAL POSTURE

On October 5, 2016, Plaintiff Andrew Moran was struck by a tire that had 

separated from the rim of a tractor trailer. (Doc. 28 at ¶ 12). Plaintiff was severely 

injured and airlifted to the University of Cincinnati Medical Center. (Id. at ¶¶ 13–14). 

The truck whose tire struck Plaintiff is owned by Defendant Ryder Truck Rental 

(“Ryder”) and was leased to and operated by Defendant Ruan Logistics (“Ruan”). (Id. at 

¶ 16). Defendant Anthony Alford—an employee of Defendant Ruan or Defendant 

O’Neal Steel, LLC—was the driver of the truck. (Id. at ¶ 17). 

1 Also pending are Defendants’ motion for summary judgment (Doc. 88), Plaintiff’s motion for 

summary judgment (Doc. 92), Plaintiff’s motion for sanctions (Doc. 93), and Defendants’ 

motion to exclude expert opinions (Doc. 97).

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Plaintiff Moran alleges that he has suffered severe and catastrophic injuries, 

incurred large medical bills, and has suffered mental and emotional trauma. (Id. at 

¶¶ 26–27). 

Plaintiff filed the initial complaint on March 30, 2018. (Doc. 1). Subsequently, 

Defendants filed a partial motion to dismiss nine counts (Doc. 5), which the Court 

granted (Doc. 20). On October 5, 2018, Plaintiff filed the Corrected First Amended 

Complaint. (Doc. 28). The Corrected First Amended Complaint presented five claims: 

negligence against Defendant Anthony Alford (Count I); agency liability against 

Defendant Ruan (Count II); negligent inspection, maintenance, and repair against 

Defendant Ryder (Count III); negligent inspection, maintenance, and repair against 

Defendant Ruan (Count IV); and agency liability against Defendant O’Neal Steele, LLC

(Count VI).2

Discovery ensued over the next year, and on November 15, 2019, the parties filed 

cross-motions for summary judgment. (Docs. 88, 92). 

Up until February 15, 2020, Plaintiff was represented by Sherrill Hondorf. On that 

day, Zachary Gottesman entered his notice of appearance on behalf of Plaintiff Andrew 

Moran. (Doc. 107).3 Three days later, Mr. Gottesman filed the present motion to 

voluntarily dismiss the case without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). (Doc. 

108). 

2 The Corrected First Amended Complaint does not contain a Count V.

3 Mr. Gottesman entered the notice of substation of counsel for Ms. Hondorf on February 29, 

2020. (Doc. 110)

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II. STANDARD OF REVIEW

A plaintiff may obtain voluntary dismissal “only by court order, on terms that the 

court considers proper” after a defendant files an answer or motion for summary 

judgment. Fed. R. Civ. P. 41(a)(2). As a general rule, dismissal under Rule 41(a)(2) is 

without prejudice. Stanton v. Kiss, Case No. 3:13-cv-2082, 2014 WL 1513990, at *1

(N.D. Ohio Apr. 16, 2014). 

It is within the “sound discretion” of the district court to grant a Rule 41(a)(2)

motion for a voluntary dismissal. Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 

(6th Cir. 1994). “Generally, a court’s decision to grant a plaintiff’s Rule 41(a)(2) motion 

is improper only if, as a result of a dismissal without prejudice, a defendant will suffer 

‘plain legal prejudice,’ as opposed to facing the mere prospect of a second lawsuit.” Id.

“[A]bsent ‘clear’ and ‘substantial’ legal prejudice to the defendant, the court 

should grant a voluntary dismissal.” Elektra Entm't Grp., Inc. v. Licata, No. 07-cv-569, 

2008 WL 4059796, at *2 (S.D. Ohio Aug. 25, 2008) (quoting Ohlander v. Larson, 114 

F.3d 1531, 1537 (10th Cir. 1997)).

III. ANALYSIS

To determine whether dismissing Plaintiff’s complaint without prejudice is 

appropriate, the Court must determine whether Defendants would suffer plain legal 

prejudice. 

The Sixth Circuit has identified four factors that courts consider to determine 

whether plain legal prejudice will result from voluntary dismissal: (1) the defendant’s 

effort and expense of preparation for trial; (2) excessive delay and lack of diligence on 

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the part of the plaintiff in prosecuting the action; (3) the plaintiff’s insufficient 

explanation for the need to take a dismissal; and (4) whether the defendant has filed a 

motion for summary judgment. Maldonado v. Thomas M. Cooley Law Sch., 65 Fed. 

App’x 955, 956 (6th Cir. 2003) (citing Grover, 33 F.3d at 718).

Importantly, “[a] court does not need to resolve every factor in favor of the 

moving party to find that dismissal without prejudice is warranted.” Kebede v. Johnny 

Rockets Grp., Inc., No. 2:05-cv-0006, 2005 WL 2493288, at *1 (S.D. Ohio Oct. 7, 2005)

(citing Tyco Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980)). “Rather, the 

factors are more of a guide and discretion ultimately rests with the trial court.” Kebede, 

2005 WL 2493288, at *1.

The Court will address each of the four factors in turn.

A. Defendants’ effort and expense

It is indisputable that Defendants have exerted considerable time and expense in 

defending this lawsuit. Defendants have litigated this action for two years; have 

conducted discovery, including written discovery, depositions, and expert discovery; and 

have filed several motions. (See Doc. 109 at 11–12). Moreover, much of the discovery 

that Defendants received from Plaintiff’s former counsel took significant effort to obtain. 

(See id. at 4–7). 

Plaintiff contends that the Defendants’ effort and expense will not be wasted if the 

complaint is voluntarily dismissed because Defendants can apply all discovery and expert 

opinions obtained in this case to a re-filed action. (Doc. 108 at 4). Where “discovery 

would largely be transferable” to a re-filed action, a plaintiff’s delay in filing the motion 

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to dismiss does “not sufficiently prejudice defendant to preclude dismissal.” Rosenthal v. 

Bridgestone/Firestone, Inc., 217 F. App'x 498, 502 (6th Cir. 2007) (finding that district 

court’s dismissal of complaint without prejudice were supported by facts in the record 

and not clearly erroneous); see also Ball v. Tennessee Valley Auth., No. 2:13-cv-904, 

2015 WL 556437, at *4 (S.D. Ohio Feb. 10, 2015) (finding that the first factor weighs in 

favor of granting dismissal without prejudice where discovery efforts will not be 

“squandered” in a re-filed action). 

Here, the Court finds that the discovery that Defendants have conducted in this 

action can largely be applied to any re-filed action. Thus, while Defendants have exerted 

significant effort and expense defending this action, the first factor does not sufficiently 

prejudice Defendants to preclude granting Plaintiff’s motion for voluntary dismissal.

B. Excessive delay and lack of diligence by Plaintiff

Plaintiff contends that he has “fully engaged in the prosecution of this case by 

responding to discovery and actively participating in the liability aspect of this case, by 

filing Motions for Sanctions regarding spoliation and a Motion for Summary Judgment.” 

(Doc. 109 at 4–5). Plaintiff concedes that “Plaintiff’s prior counsel failed to obtain, 

prepare and present the necessary vocational and medical treatment experts,” but 

contends that those omissions are “not attributable to individual Plaintiff.” (Id. at 4). 

Plaintiff maintains that those deficiencies were just discovered by Plaintiff’s current 

counsel.

Defendants, however, argue that the delay in this litigation has been caused by 

Plaintiff, not his former counsel. Defendants list several instances of Plaintiff lacking 

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diligence in prosecuting his case including causing delays in written discovery, failing to 

pursue treatment for his injuries, and lacking evidence to support his alleged loss of 

future earning capacity. (Doc. 109 at 12). But Defendants’ response seems to recognize 

that Plaintiff’s counsel noted that any lack of diligence by Plaintiff Moran was due to his

being “very difficult to deal with” and having “mood swings” (Id. at 5, 7). It is the 

Court’s understanding that those mood swings were purportedly caused by the “severe 

and catastrophic injuries” that Plaintiff suffered from the accident at issue and the 

resulting mental health issues. (See Doc. 28 at ¶¶ 26, 27). Moreover, while Defendants 

attempt to cast blame for delay on Plaintiff Moran alone, the Court notes that the actions 

and omissions of Plaintiff’s former attorney are also at fault for any delay. (See, e.g., May 

24, 2019 Minute Entry and Notation Order; July 17, 2019 Minute Entry and Notation 

Order). 

The Court is persuaded that Plaintiff—for the most part—actively prosecuted this 

case, and any delay or lack of diligence by Plaintiff are largely due to a combination of 

the injuries he sustained in the accident at issue and omissions made by his prior counsel. 

For that reason, the second factor does not sufficiently prejudice Defendants to preclude 

granting Plaintiff’s motion for voluntary dismissal.

C. Plaintiff’s reason for dismissal 

Plaintiff states that he has suffered “catastrophic, life-altering injuries as a result of 

Defendants’ conduct” and “needs to submit expert testimony regarding his future 

vocational challenges due to the accident and his future medical needs.” (Doc. 108 at 5). 

Without dismissal, Plaintiff notes that “the limitation on non-economic damages 

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contained in R.C. § 2315.18 will unfairly limit Plaintiff’s recovery for the injuries he 

sustained.” (Id.)

Defendants contend that Plaintiffs have not provided any explanation for why 

Plaintiff seeks dismissal without prejudice. (Doc. 109 at 15). Defendants note that 

Plaintiff’s former counsel did “submit expert reports from an accident reconstruction 

expert, a tire failure analysis expert, and neuropsychology expert.” (Id.) Defendants 

suggests that Plaintiff’s failure to submit expert reports on vocational limitations may 

have been strategic. (Id.) 

The Court is unpersuaded by Defendants’ argument that Plaintiff’s former 

counsel’s decision not to call a necessary expert was strategic, especially because 

Defendants themselves identify several incidences where Plaintiff’s former counsel failed 

to request depositions of key figures in this litigation, including Defendants Ruan, Ryder, 

and O’Neal Steel, and Defendants’ expert, Tom Giapponi. (Id. at 12). Thus, it is 

unlikely that Plaintiff’s former counsel’s failure to submit expert reports on vocational 

limitations was strategic. 

The Court finds that Plaintiff’s need to submit expert testimony regarding his 

future vocational challenges and his future medical needs is a sufficient reason for 

seeking dismissal. For that reason, the third factor does not sufficiently prejudice 

Defendants to preclude granting Plaintiff’s motion for voluntary dismissal

D. Defendants’ filing of motion for summary judgment

Finally, it is uncontested that both parties currently have pending motions for 

summary judgment. (Docs. 88, 92). Thus, the fourth factor clearly weighs in 

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Defendants’ favor, and shows that dismissal at this stage will prejudice Defendants to 

some extent. Nevertheless, no one factor is determinative. See Kebede, 2005 WL 

2493288, at *1 (“A court does not need to resolve every factor in favor of the moving 

party to find that dismissal without prejudice is warranted.”).

Weighing the four factors, the Court finds that there is not clear and substantial 

evidence that Defendants would suffer plain legal prejudice by dismissal without 

prejudice. See Elektra, 2008 WL 4059796, at *2. Therefore, Plaintiff’s motion to 

voluntarily dismiss this action without prejudice is well-taken.

To be clear, this case is a close call. The Court does not grant Plaintiff’s motion

lightly. Without granting Plaintiff’s motion to dismiss without prejudice, the Court is 

concerned that Plaintiff will be unable to obtain redress for the serious, traumatic injuries 

that he suffered allegedly due to Defendants’ actions. As Plaintiff notes, he “has one 

chance to recover damages for this life altering accident and he should not be hampered 

from doing so by the mistakes and/or omissions of his prior counsel.” (Doc. 108 at 5–6). 

The Court recognizes that Defendants—who have professionally and diligently defended 

this action—will be inconvenienced, but that inconvenience does not rise to the level of 

plain legal prejudice. Accordingly, in the Courts’ discretion, dismissal without prejudice 

is warranted and Plaintiff’s motion (Doc. 108) is GRANTED.

Additionally, Defendants request that—if the Court grants Plaintiff’s motion to 

dismiss, as it has here—“the Court first rule on the pending motions prior to granting the 

dismissal, and to hold that those rulings (and all prior rulings) would apply in any re-filed 

lawsuit.” (Doc. 109 at 16 (citing Bridgeport Music, Inc. v. Universal-MCA Music Pub., 

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Inc., 583 F.3d 948, 954 (6th Cir. 2009) (“A Rule 41(a)(2) dismissal may be conditioned

on whatever terms the district court deems necessary to offset the prejudice the defendant

may suffer from a dismissal without prejudice.”)). Here, the Court finds that it would be

inappropriate to rule on the pending motions (Docs. 88, 92, 93, 97) in light of the Court’s

finding that dismissal without prejudice is warranted. Accordingly, Defendants’ motion

for summary judgment (Doc. 88), Plaintiff’s motion for summary judgment (Doc. 92), 

Plaintiff’s motion for sanctions (Doc. 93), and Defendants’ motion to exclude expert

opinions (Doc. 97) are DENIED as moot.

IV. CONCLUSION

For the reasons reflected above, Plaintiff’s motion for voluntary dismissal (Doc. 

108) is GRANTED, and Plaintiff’s claims are DISMISSED without prejudice. The

other pending motions—Defendants’ motion for summary judgment (Doc. 88), Plaintiff’s

motion for summary judgment (Doc. 92), Plaintiff’s motion for sanctions (Doc. 93), and

Defendants’ motion to exclude expert opinions (Doc. 97)— are DENIED as moot. The

Clerk shall enter judgment accordingly, whereupon this case is TERMINATED on the

docket of this Court.

IT IS SO ORDERED. 

Date: 8/14/2020 /s/ Timothy S. Black 

Timothy S. Black

United States District Judge

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