1

There are other pending motions in this case. In view of

this decision, the court declines to reach them.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HOWARD WOMACK, §

 §

Plaintiff, §

 § Civil Action No. 3:06-CV-0285-D

VS. §

 §

HOME DEPOT U.S.A., INC., et al.,§

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this diversity action, plaintiff and plaintiff-intervenor

move to dismiss the case without prejudice under Fed. R. Civ. P.

41(a)(2) so that they can proceed against all defendants in a

subsequently-filed state court action. The court finds that the

defendant who opposes the motion will not suffer plain legal

prejudice if the case is dismissed, and that the court can address

the defendant’s concerns about wasted services by conditioning

dismissal on payment of attorney’s fees and expenses that are not

directly usable in the state court case. Accordingly, the court

conditionally grants the motion.1

I

While working at a Home Depot Transit Center, plaintiff Howard

Womack (“Howard”), a forklift operator, sustained serious injuries

when another forklift operator hit an exposed slippery spot on the

facility floor, slid across the floor, and impacted another

 

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2Howard’s wife Tracy intervened as a party-plaintiff. Both

Howard and Tracy move for voluntary dismissal. For ease of

reference, the court will refer to both of them in the singular as

“Womack,” and use the male pronoun “he.”

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forklift that in turn hit Howard. Despite attempts over several

months to save Howard’s leg, it was necessary to amputate it.

Howard has sued defendant Home Depot USA, Inc. (“Home Depot”) in

this court, seeking compensatory and exemplary damages and

predicating subject matter jurisdiction on diversity of

citizenship.2 Howard is a Texas citizen, and Home Depot is a

citizen of Delaware (state of incorporation) and Georgia (state of

principal place of business). Womack alleges in his complaint

that, due to natural causes and the chosen surface material of the

floor, the warehouse facility floor would “sweat” and become

“slippery.” Compl. ¶ 3.4. His negligence claims against Home

Depot were based originally on a theory of premises liability.

Home Depot obtained leave to file a third-party action against

Darnell Anderson (“Anderson”), the forklift driver who allegedly

struck the parked forklift that struck Howard. Home Depot alleges

that Anderson was negligent in his operation of the forklift and

that Home Depot should not bear legal responsibility to the extent

Anderson’s negligence caused Howard’s injuries. It seeks

contribution from Anderson for any liability that it may be

adjudged to have to Womack.

Through the discovery process, Womack learned of several new

 

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potential defendants, and the court granted him leave to amend his

complaint to sue them. Womack’s second amended complaint names

Randall-Paulson Architects, Inc. (“Randall-Paulson”), Abrams

Construction, Inc. (“Abrams”), CalEast HD Limited, LP, CalEast HD,

LLC, and Centerpoint Venture, LLC (“Centerpoint”) as additional

defendants. Womack asserts, inter alia, claims against the CalEast

entities and Centerpoint as the owners of the facility at the time

the accident occurred, alleging that they knew or should have known

of the condition of the floor and had a duty adequately to warn

Howard of the condition of the floor and to make the condition

reasonably safe. Womack also asserts a claim for negligent design

against Randall-Paulson, the facility architect, and a negligence

claim against Abrams, the general contractor that built the

facility. None of the additional defendants is a citizen of Texas,

so adding them as defendants did not destroy the court’s diversity

jurisdiction.

The statute of limitations on Womack’s action expired December

31, 2006. On December 14, 2006 Randall-Paulson alerted Womack that

three Trammel Crow companies were also involved on the construction

of the facility, and Womack discovered that Trammel Crow Company

(“Trammel Crow”) is listed as the builder on the building permit.

Trammell Crow is a Texas corporation with its principal place of

business in Texas. Also, during a recent inspection of the

facility, Womack discovered that another Texas company, Equipment

 

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Depot, Inc. (“Equipment Depot”), had a contract to maintain the

forklifts that caused the injury in this case. Several forklifts

on the inspection had warnings of bad breaks. Womack believes the

Trammell Crow companies and Equipment Depot may be liable, at least

partially, for Womack’s injuries.

Adding the three Trammell Crow companies and Equipment Depot

as defendants would destroy diversity jurisdiction and require that

the court dismiss this case for lack of jurisdiction. Womack filed

suit in state court before the expiration on December 31, 2006 of

the statute of limitations. Womack now moves to dismiss this case

without prejudice under Rule 41(a)(2) so that he can pursue his

claims against all defendants in his state court lawsuit. Home

Depot opposes the motion.

II

Rule 41(a)(2) provides:

Except as provided in paragraph (1) of this

subdivision of this rule, 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. If a

counterclaim has been pleaded by a defendant

prior to the service upon the defendant of the

plaintiff’s motion to dismiss, the action

shall not be dismissed against the defendant’s

objection unless the counterclaim can remain

pending for independent adjudication by the

court. Unless otherwise specified in the

order, a dismissal under this paragraph is

without prejudice.

Under Rule 41(a)(2), a motion “for voluntary dismissal should be

freely granted unless the non-moving party will suffer some plain

 

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legal prejudice other than the mere prospect of a second lawsuit.”

Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).

[O]utright denial of a motion to dismiss

should be reserved only for those cases where

the defendant demonstrates: (1) that dismissal

will preclude the court from deciding a

pending case or claim-dispositive motion; or

(2) that there is an objectively reasonable

basis for requesting that the merits of the

action be resolved in this forum in order to

avoid legal prejudice. 

Radiant Tech. Corp. v. Electrovert USA Corp., 122 F.R.D. 201, 203

(N.D. Tex. 1988) (Fitzwater, J.).

Womack argues that the court should grant his motion because

most defendants are not opposed to dismissal without prejudice and,

to date, very little discovery has been completed. He argues that

if the court denies the motion, there will be two concurrent

proceedings: one in state court against the non-diverse defendants,

and one in federal court against the current diverse defendants.

Womack also maintains that Home Depot, which is opposed to

voluntary dismissal, could have alerted him to the involvement of

Trammell Crow when the lawsuit was initially filed. And he asserts

that, if he were to wait until after the running of limitations and

not attempt to add Trammell Crow or Equipment Depot as defendants,

another defendant could wait until after the statute had expired,

designate the non-diverse party as a responsible third party, and

Womack would be unable to add the non-diverse party without

destroying diversity. Womack reasons that, if diversity is

 

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destroyed after limitations has run and the case is dismissed, he

will be left with no recourse.

Home Depot opposes Womack’s motion, arguing that it has

already expended significant resources on discovery in this

lawsuit, responding to numerous written discovery requests,

participating in five depositions, permitting Womack’s entry on the

premises of the facility for inspection, and raising electronic

discovery issues that have resulted in multiple pleadings and

hearings. Home Depot argues that it has exerted significant time

and effort in designating responsible third-parties and pursuing

third-party claims against persons who caused or contributed to the

harm Womack alleges. It argues that in light of its interest in

having its third-party claims against Anderson under Rule 14(a)

proceed in federal court, as well as the effort expended and costs

incurred thus far with respect to discovery and pretrial matters,

it would suffer clear legal prejudice if the court grants Womack’s

motion. Home Depot maintains that it will suffer cognizable

prejudice because it has already joined Anderson as a third-party

defendant, it had difficulty serving him, and it is uncertain that

it will be successful locating and serving him a second time.

Therefore, it may be subjected to parallel litigation should it be

forced to maintain the action in this court. Home Depot also cites

as evidence of prejudice the attorney’s fees and defense costs it

has incurred in conducting discovery and litigating motions in this

 

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forum, and it urges that its exertion of significant time and

effort supports denying voluntary dismissal. It points out that

there is a pending motion by Anderson to compel arbitration, and,

if the case is dismissed, the issue would be litigated in state

court at additional cost. Home Depot maintains that it should not

be faulted for failing to identify the Trammell Crow companies for

possible negligent construction claims because in his original

complaint, Womack asserted that the alleged condition resulted from

natural causes and the chosen surface of the floor. Home Depot

states that it was not aware of any evidence that Trammell Crow

chose the surface of the floor or participated in the decision

regarding the surface of the floor.

Alternatively, if the court grants Womack’s motion to dismiss,

Home Depot requests that as a condition of dismissal, the court

require that Womack reimburse Home Depot for its reasonable

attorney’s fees and defense costs incurred in this action that will

not translate to the state lawsuit. It asserts that these

costs——covering six categories of expenses——total $15,326.59. Home

Depot also requests that the court require Womack to agree that all

written discovery in this case applies to the state lawsuit, and

that Womack move the state court to enter an order regarding the

parties’ agreed computer research protocol.

Womack replies that this is a significant injury case with

evidence that Home Depot was aware before the incident of the

 

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problem with the warehouse flooring; if he waits until after

limitations has expired, defendants can designate non-diverse

companies as responsible third parties, and he cannot join them

without destroying diversity, resulting in dismissal without

recourse to a pending state case; there are no pending dispositive

motions and there has been no substantial weakening of his case; he

has steadfastly pursued discovery, and the discovery performed

through the filing of his motion to dismiss will be usable in the

state court case; the large majority of the other work done in this

case would have been performed had the case been filed in state

court; and he has a good reason for seeking dismissal and is not

attempting to avoid costs or to end a lawsuit that has been

substantially weakened or to avoid a pending dispositive motion.

Womack also argues that he has provided Home Depot with Anderson’s

address; he and Home Depot have agreed on a computer protocol, and

he intends to request that the state judge institute the same one;

and Home Depot’s request for attorney’s fees includes a large

majority of discovery and work done in the present case that will

extend to the state court case, the parties can agree that all

discovery obtained in this court can be used in state court, and

Home Depot’s affidavit and motion fail to provide sufficient

information so that the court and Womack can accurately determine

what fees are related to what activity, precluding Womack from

challenging the fee request.

 

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III

To deny Womack’s motion for voluntary dismissal, the court

must be able to find that Home Depot will suffer some plain legal

prejudice if the court grants the motion. Elbaor, 279 F.3d at 317

(“We have explained that, as a general rule, motions for voluntary

dismissal should be freely granted unless the non-moving party will

suffer some plain legal prejudice other than the mere prospect of

a second lawsuit.”); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604

(5th Cir. 1976) (“[I]n most cases a dismissal should be granted

unless the defendant will suffer some legal harm.”). 

A

Home Depot’s arguments essentially fall into these three

categories: first, it has expended in this forum significant time

and effort, and attorney’s fees and defense costs, on discovery,

litigating motions, and other pretrial matters; second, it has

exerted significant time and effort designating responsible thirdparties and pursuing third-party claims, and it will be prejudiced

because it has already joined Anderson as a party, it had

difficulty serving him, and it is uncertain whether it can locate

and serve him a second time, possibly subjecting it to parallel

litigation, and Anderson’s pending motion to compel arbitration

would have to be litigated in state court at additional cost; and

third, in the alternative, if the court grants Womack’s motion, the

court should require that Womack reimburse Home Depot for its

 

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reasonable attorney’s fees and defense costs incurred in this

action that will not translate to the state lawsuit, should require

Womack to agree that all written discovery in this case applies to

the state lawsuit, and should direct that Womack move the state

court to enter an order regarding the parties’ agreed computer

research protocol.

B

The court concludes that Home Depot will suffer plain legal

prejudice based on the reasoning presented in its first argument.

Home Depot has failed to demonstrate that the expenses incurred in

this forum would not largely have been incurred had the case been

filed in state court in the first instance. And the court is

conditionally granting dismissal on Womack’s reimbursing Home Depot

for the attorney’s fees and expenses that are not directly usable

in the state court case.

The court also concludes that Home Depot’s second reason for

opposing Womack’s motion does not justify denying it. Home Depot

can bring third-party actions and designate responsible third

parties in a state court lawsuit. And considering the state of the

record of Anderson’s active participation in this case, the court

concludes that Home Depot’s professed concerns about serving him in

a second lawsuit are simply too speculative to warrant denying

Womack’s motion. Womack has shown how he provided Anderson’s

address to Home Depot, and Home Depot’s assertion that Anderson’s

 

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counsel is not required to waive service is not evidence that

Anderson’s attorney will not waive service or that Anderson cannot

be served through reasonable efforts.

Two cases that Home Depot cites in its opposition brief can be

distinguished from this suit. Home Depot cites Doe v. Dow

Chemical, Co., 343 F.3d 325 (5th Cir. 2003), to contend it will

suffer cognizable prejudice through dismissal. In Doe the “United

States had declined to intervene in the suit, a move which could be

interpreted by Doe as substantially weakening his case,” and “Doe’s

counsel had been sanctioned by the district court for failure to

participate in the discovery process.” Id. at 330. Thus the Fifth

Circuit held that the district court did not abuse its discretion

in refusing to grant Doe’s motion to dismiss under Rule 41(a)(2).

Id. Here, by contrast, Womack has diligently pursued discovery,

the discovery that has already been conducted can be used in a

state court lawsuit, and there is no basis to conclude that

Womack’s case has been weakened by a court ruling or that he is

seeking to avoid a ruling on a pending dispositive motion.

Home Depot also relies on the Fourth Circuit’s opinion in

Piedmont Interstate Fair Ass’n v. Bean, 209 F.2d 942 (4th Cir.

1954), to contend that this court “should not frustrate the purpose

of Rule 14 by ‘too liberal an exercise of the court’s power to

allow a plaintiff to dismiss his case.” D. Br. 4 (quoting Piedmont

Interstate Fair Ass’n, 209 F.2d at 947). In that case the court

 

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noted that 

the third party defendants, all of whom have

their legal residence outside the State of

South Carolina, have been summoned in the

present litigation and have answered the third

party complaint. Whether it would be possible

to get service upon them again in South

Carolina or elsewhere so that the respective

rights and liabilities of the parties to the

third party action could be determined in one

suit is entirely conjectural. 

Id. at 948. But Anderson’s circumstances are dissimilar from those

in Piedmont Interstate Fair Ass’n. Anderson has actively

participated in this case, including filing a motion to compel

arbitration, and Home Depot’s stated concerns about serving him are

speculative.

Home Depot’s third reason for claiming legal prejudice is

largely coterminous with its alternative request for attorney’s

fees and expenses incurred in the action for work that will not

translate to the state action. Home Depot maintains that the court

should require that Womack reimburse Home Depot for such fees and

costs and that he agree that all written discovery in this case

applies to the state lawsuit and that he move the state court for

an order that gives effect to the agreed computer research

protocol. Womack does not appear to contest the last two

conditions, and he appears to challenge the request for fees and

costs only based on the amount of the request and the lack of

specificity justifying that amount. 

 Home Depot contends that it is entitled to recover the sum of

 

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$15,326.59 for attorney’s fees and/or costs incurred in connection

with the following:

a. Plaintiff’s pleadings in the Federal

lawsuit, including but not limited to its

Answers, Certificate of Interested

Persons, and Rule 26(a) disclosures; 

b. Plaintiff’s opposition to Home Depot’s

Motion for Leave to File Third-Party

Claims against Darnell Anderson, which

was based [on] Plaintiff’s belief that

the joinder of Darnell Anderson would

defeat diversity jurisdiction;

c. Plaintiff’s Motion for Temporary

Restraining Order, Emergency Motion to

Compel, and Motion for Protective Order

filed on July 7, 2006;

d. Plaintiff’s issuance of a subpoena duces

tecum to Laura Harris-Krenz;

e. Motions for Protection from Plaintiff’s

deposition notices; and

f. Depositions of Mike Waldrep, Craig Stone,

Laura Harris-Krenz, Howard Womack, and

Rusty Womack.

D. Resp. 7 (emphasis omitted). 

A district court may reasonably impose

attorney’s fees and costs as a condition for

dismissal where, at plaintiff’s instance, the

litigation will not result in a merits

resolution. If it appears that the plaintiff

intends to refile the action in another forum,

or that a similar action is pending before a

different court, and that discovery and other

pretrial legal services will translate to the

second proceeding, the court may adjust the

fees and expenses accordingly.

Radiant Tech. Corp., 122 F.R.D. at 204. The question the court

must decide is whether Home Depot has shown that the entire sum of

 

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$15,326.59 “will [not] translate to the second proceeding.” Id.

The affidavit that Home Depot’s counsel has submitted in

support of the fee request describes the services that Home Depot

contends “will be of no value in a State court action.” D. App.

12-13. Counsel specifies the hourly rates of Home Depot’s lead

counsel and of associate attorneys, and he avers that the hours

spent were reasonable. Id. at 13. He opines that the total sum of

$15,326.59 is reasonable for such services, and he states that he

will provide the court with unredacted bills, if necessary, that

reflect these fees and expenses. Id. at 13-14.

The court cannot determine from this evidence whether an award

of $15,326.59 is supported. Using the highest hourly rate claimed

($150)——because it is the most conservative for this purpose——and

assuming that $15,000 of the claimed amount represents attorney’s

fees, Home Depot’s attorneys spent 100 collective hours on services

that supposedly have no value in state court. Moreover, at least

two of the categories that Home Depot cites——motions for protection

from Womack’s deposition notices and the depositions of five

witnesses——do not on their face appear to be wasted services that

will not be fully or largely translatable to the state court suit.

“Th[is] court will not order reimbursement for work that need not

be duplicated or abandoned.” Radiant Tech. Corp., 122 F.R.D. at

205. 

Accordingly, in granting Womack’s motion on the condition that

 

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3

Rather than submit documents in camera that Womack cannot

fairly challenge, Home Depot should attempt to describe attorney

services in terms that establish their reasonableness without

revealing privileged communications, work product, or litigation

strategy. 

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he pay to Home Depot the attorney’s fees and expenses that are not

directly usable in the state court action, the court assumes the

parties will resolve by agreement what those attorney’s fees and

expenses should be. If, after engaging in negotiations undertaken

in utmost good faith and with a high degree of professionalism,

they cannot agree to a reasonable amount, the court will decide the

amount, reserving the right to reduce the fees and expenses that

Womack owes if Home Depot’s position is unreasonable, and to

increase the conditional fee award to Home Depot if Womack’s

position is unreasonable.

IV

 Accordingly, Womack’s motion to dismiss is granted on the

condition that he pay to Home Depot its reasonable attorney’s fees

and expenses that are not directly usable in the state court

action. If the parties can agree on this amount, they may advise

the court, and it will enter a conditional order of dismissal. If

they cannot agree, Home Depot must file a brief and supporting

evidentiary appendix,3 Womack must file a brief and any supporting

evidentiary appendix within 20 days thereafter, and Home Depot may

file a reply brief, but not additional evidence, within 15 days

thereafter.

 

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After the parties agree to, or the court calculates, the

appropriate fees and expenses to be paid, Womack has four options.

First, he can accept the dismissal with its condition, in which

case Home Depot will have an enforceable judgment that it can

execute. Id. (citing Yoffe v. Keller Indus., Inc., 582 F.2d 982,

983 (5th Cir. 1978) (per curiam) (opinion denying panel

rehearing)). Second, Womack can decline to dismiss, decline to

pay, and take his chances at trial. Id. Third, he can accept the

dismissal and decline to pay, and the court can dismiss this case

with prejudice. Id. Fourth, he can withdraw his motion. Id. at

205-06. Accordingly, within 14 days of the date the reasonable

fees and expenses are set by agreement or by the court, Womack must

inform the court of the option he has elected, and the court will

proceed in accordance with the election.

* * * 

Womack’s January 4, 2007 amended motion to dismiss is

conditionally granted, and he and Home Depot must promptly attempt

 

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to resolve by agreement the amount of reasonable attorney’s fees

and expenses to be awarded or, failing agreement, initiate the

briefing process needed for setting such fees and expenses as a

condition of dismissal.

SO ORDERED.

February 15, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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