### No. 14837 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

MARY PETRITZ

## , Plaintiff and Respondent,

VS. 

### ALBERTSONS, INC. an Idaho corporation, Defendant and Appellant.

Appeal from: District Court of the Second Judicial District, In and for the County of Silver Bow. Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: Poore,Roth, Robischon & 

### Robinson, Butte, Montana Donald Robinson argued, Butte, Montana For Respondent: Michael J. McKeon argued, Anaconda, Montana David 

### L. Holland, Butte, Montana

Submitted: February 27, 1980 

### Api~ Decided: ii 

## -19a Filed: -2 

# 54

-

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an action alleging unlawful discharge in employment. Plaintiff-respondent,Mary Petritz, filed a 

### compl-aint. against defendant-appellant,Albertsons, Inc., on August 16, 1977, in the DistrictCourt of the Second Judicial District, in and for the County of Silver BOW, alleging that shewas unlawfully discharged from her employment with Albertsons, Inc., where she was employed as a meat wrapper. The complaint alleged that her dischargewas discriminatory, in violation of both the Montana State Constitution and a labor agreementbetween the Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 333,AFL-CIO, of which she was a member. Plaintiff soughtback wages, seniority benefits, and general damages. Defendant filed an answer to plaintiff's complaint on December 28, 

### 1977,denying the allegations of the complaint and asserting certain affirmative defenses. On the same day, a pretrial conference was held atwhich the District Court ordered that, if the parties desired to introduce exhibits in addition to those listed at the pretrial conference, they would supply copies of such exhibits to opposing counsel at least ten days prior to trial. The District Court also entered a similar order with respect to witnesses, requiring that counsel serve a list of any additional witnesses upon opposing counsel at least twenty days before trial. Defendant engaged thereafter in extensive pretrial discovery, taking several depositions. The casewas set for

a trial by jury onApril 3, 

### 1979.

### ~ive days prior to trial, on March 28, 1979,defendant

was served with a list of witnesses plaintiff intended to call at the time of trial. The list contained the names of seven people who had not been listed aswitnesses at the pretrial conference. Accompanying the list was a notice for the taking of the depositionsof two witnesses whose names

were supplied at the conference. The time set for the taking of these depositions was April 2, 1979, the day before trial. On March 29, 1979,defendant filed a motion for a directed verdict and a brief in support thereof. Defendant also filed a motion in limine to exclude the testimony of the new witnesses and a motion to quash the taking of the deposition of the two witnesses. Hearings were held with regard to these motions onMarch 30, 

### 1979. The District Ccurt granted the motion to quash and reserved a ruling on the motion in limine until trial. On the day before trial, April 2, 1979,plaintiff filed a motion for voluntary dismissal of the action without prejudice to her right to refile another action against defendant. The motion was filed pursuant to Rule 41(a)(2)

## , M.R.Civ.P. A hearing was held upon the motion. At the hearing,plaintiff argued that the motion for voluntary dismissal should be granted because new witnesses had been discovered which would supportan additional theory of liability against the defendant for wage and sex discrimination. Plaintiff advised the court that thesewitnesses had not been known prior to ~pril 2, 

### and that,when they

were discovered, their names were immediately served upon counsel for defendant. Defendant opposed the motion for dismissal on the grounds that it had engaged in extensivepretrial discovery, that the motion was being employed 

### as a tactic to avoid a directed verdict, and that if the trial

were delayed, defendant would incur another year's liability for back wages if a verdict forplaintiff were eventually recovered. The DistrictCourt granted plaintiff's motion and entered an order that the action be dismissed without prejudice. Defendant thereafter filed a motion to alteror amend the order, or to condition such dismissal upon the attachment of certain conditions. In support of 

### itsmotion, defendant filed affidavitsof attorney fees, costs and expenses which it feltcould not be of benefit inany future action. The costs totaled $881.93. Defendant also

### estimated 

### itspotential liability forback wages ina future action tobe approximately $17,573.34. Defendant moved for

an order tollingback-pay liability from the day which had been originally 

### set for the 

### trial to the 

### timeof the entry of a judgment inany future action. Inresponse to thesemotions, the DistrictCourt entered

an order on April 24, 1979 amending 

### itsApril 2 order. That order directed plaintiff topay defendant $85 for filing costs and attorney fees presently incurred, if the plaintiff sought to institute another action in the future. The DistrictCourt refused toconsider, however, the tolling of any back-pay liabilityduring the pendency of any new action. On May 18, 1979, plaintiff filedanother separate action against defendant and her union inwhich she alleged that she had been unlawfully and discriminatorily discharged from her employment. In the complaint, plaintiff sought all lostwages, seniority benefits and general damages. hat action 

### is stillpending.Defendant appeals from the ruling of the District Court in

### itsApril 2 and April 24 orders. Three issues areraised for our consideration upon appeal: 

### 1. Whether the DistrictCourt erred ingranting plaintiff's motion todismiss without prejudice on the day before trial? 2. Whether the DistrictCourt erred inrefusing to tollback-pay liabilityof defendant which 

### willaccrue from the date originally scheduled for 

### trial to the date of entry of any judgment recovered in

### a possible future action? 3. Whether the DistrictCourt erred inrequiring that,



### as a condition precedent toplaintiff bringing another action, plaintiff pay defendant a sum inthe amount of $85 for attorney fees and filing costs already incurred? The issues raised by defendant inthis 

### case require thisCourt tointerpretRule 41(a)

### (2) of the Montana Rules of CivilProcedure. This rule 

### is identical inallrespects toRule 41(a)(2)of the Federal Rules of Civil Procedure, which has been interpreted by many authorities. The interpretations under the federal.rulehave persuasive application to an interpretation of the 

### state rulebecause of the identical language. Rule 

### 41(a),M.R.Civ.P. provides inpertinent part: "Voluntary dismissal

## - effect thereof. (1) By plaintiff 

## - by stipulation. Subject to the provisions of Rule 23(c), of Rule 66, and of any statuteof the state of Montana, an actionmay be dismissed by the plaintiff without order of court (i) by filing a notice of dimissal atany 

### timebefore service by the adverse party of an answer or of a motion for summary judgment, which ever firstoccurs, or (ii) by filinga stipulation of dismissal signed by allpartieswho have appeared inthe action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice."

### (2) By order of court. Except asprovided in paragraph (1) of this subdivision of this rule, an action shall notbe dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the courtdeems proper. 

# .. .Unless otherwise specified in the order, a dismissal under this paragraph iswithout prejudice." It is clear that the granting of a motion for voluntary dismissal under Rule 41(a)(2) iswithin the sound discretion of the trial court and is reviewable only for an abuse of discretion. Armstrong v. Frostie Co. (4thCir. 1971), 453 F.2d 914, 916; La-Tex Supply Co. v. Fruehauf Trailer Division, Fruehauf Corp. (5thCir. 1971), 444 F.2d 1366, 1368. It is not a matter of right. In using its discretion, the court should consider the expense and inconvenience that will result to the defendant, other prejudicial consequences, and whether terms and conditions attached to the dismissal may make the defendant reasonablywhole. Barron and Holtzoff, Federal Practice and Procedure, 5912 at 116-117. "It is the prejudice to the defendant, rather the convenience of the court, that is to be considered in passing on a motion for dismissal. If themotion ismade at an early stage of the case,before much has happened, it ismore likely to be granted. Although dismissalmay still be allowed at later stages, an especially strong showing is required to warrant voluntary dismissal without prejudice after the plaintiff has concluded his evidence or the defendant has moved for a directed verdict or a verdict has been directed for defendant." Wright and Miller, Federal Practice and Procedure, 52364 at 169-1707 The general rule is that dismissal should be allowed unless the defendantwill suffer some plain legal prejudice other than themere prospect of a second lawsuit. Moore's Federal Practice,Vol. 5, 

### 1141.05 at 41-72; Wright and Miller, supra, S2364 at 165. It is no bar to a dismissal that the plaintiff may obtain a tactical advantage. Barron and Holtzoff, supra, 5912 at 114;Moore's Federal Practice,supra. The purpose of Rule 41(a)(2) "isprimarily toprevent voluntary dismissalswhich unfairly affect the other side, and topermit the imposition of curative conditions." Wright and Miller, supra. When a trial court decides togrant

### a motion for voluntary dismissal under Rule 41(a)(2), it 

### isvested with wide discretion indetermining what conditions may attach to the dismissal. It may, for example, require a plaintiff topay costs and reasonable attorney fees, or it may choose to impose no conditions atall: "The 

### termsand conditions thatmay be imposed upon the granting of a motion for voluntary dismissal are for the protection of a defendant, and inthe absence of proper objections or showing of proper conditions, the courtmay dismiss without conditions. Each party may be required topay his own costs, but ordinarily the dismissal should be conditioned upon the payment of costsby plaintiff." Barron and Holtzoff, supra, 5914 

### at 123. Plaintiff contends inthis case that the trialcourt didnot abuse 

### itsdiscretion indismissing the action and awarding defendant $85 for costs and attorney fees. plaintiff argues that the dismissal

### wasproper because of recently discovered witnesses and the fact thatdefendant had suffered no prejudice because the trialhad not yet commenced. Plaintiff submits that the dismissal was not sought as a tactical device toescape the motion for 

### a directed verdict

or to avoid the requirements of the pretrial order. Defendant contends, however, that the trial court erred. Defendant argues that it suffered substantialprejudice by the dismissal--not only had it engaged inextensive pretrial discovery, but it was facedwith increasing backpay liability for plaintiff should an unfavorable judgment eventually be recovered.In considering the positions of the parties, 

### we note firstthat there 

### is supporting federal authority for both sides. On one hand, federal courts have allowed parties to dismiss when they have discovered new evidence 

### late in the proceedings. See, Gold v. Geo. T. Moore Sons, Inc. (1943), 3 F.R.D. 201; Union Nat. Bank of Youngstown 

### v. Superior Steel Corp. (1949), 9F.R.D. 117. The United States Supreme Court has alsoexpressed its approval of a motion to dismiss under Rule 41(a)(2)in the situation where there has been a motion for a directed verdict and the court believes that, although there isa technical failure of proof, there 

### is nevertheless a meritorious claim. Cone v. WestVirginia Pulp & Paper Co. (1947), 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849. On the other hand, federal courts have denied motion for voluntary dismissal where an action has been pending for a long 

### timeand a party was not diligent in discovery. Pace v. Southern Express Co. (7thCir. 1969), 409 F.2d 331; Paturzo 

### v. Home Life Ins. Co. (4thCir. 19741, 503 F.2d 333; Shaffer v. Evans (10th Cir. 1958), 263 F.2d 134; Walker v. Spencer (10thCir. 1941), 123F.2d 347. We alsonote that there appears tobe no well-settled rule with respect to the issue of whether a party's liabilitymay be tolled and attached asa condition inthe granting of a voluntary dismissal. While a court 

### is generallygiven wide discretion inimposing conditions under Rule 41(a)(2)

## , and such conditions arenot merely limited to the payment of money, cases which have addressed a defendant's continuing liability for possible future actions have reached opposite results. See, Union Nat. Bank of Youngstown v. superior SteelCorp., supra; ~hiladelphia Gear works 

### v. Kerotest Mfg. Co. (D.C. Pa. 1951), 101F.Supp. 820.Inunion Nat. 

### -- Bank, an action for infringement upon patents, the court refused toattach as a condition to the voluntary dismissal plaintiff's agreement not to assert against defendant any 

### claimswhich 

### werebased upon other patents which plaintiff might have possessed during the pendency of the complaint. Yet, inPhiladelphia Gear Works, another patent infringement suit, the motion todismiss was granted on the condition thatplaintiff would not assert a claim against defendant orhisvendees or successors in 

### title. Authorities interpreting these 

### cases also adopt positions thatvary. While one authority phrases the general rule by stating that 

### a court "may condition dismissal on plaintiff's agreement not toassert certain claims inanother action," another 

### states that "the court

### willordinarily refuse" such conditions. Wright and Miller, supra, 82366 at 181; Barron and Holtzoff, supra, 8914 at125-26. In this case, what weighs most heavily inour judgment 

### is the extent towhich the defendant was prejudiced, if any, by the dismissal and whether, if substantialprejudice did occur, the defendant could have been made reasonably whole by the imposition of any curative conditions attached to the dismissal. Where such conditions may be attached, the general rule favoring the granting of the motion should be followed. The fact thatdefendant may suffer the prospect of a second lawsuit or thatplaintiff may obtain some tactical advantage by the dismissal should not bar granting the motion. Barron and Holtzoff, supra. Here, 

### we find that defendant suffered substantial prejudice by the granting of the motion and that thisprejudice could have been cured by imposing conditions. Inview of the unsettled stateof the 

### lawwith respect to tollingliability in future actions, however, we decline to say whether the trial court should have attached the tolling of any liability forplaintiff's back pay asa condition to the dismissal. We leave thismatter for the trial court's consideration inthe trial of the second action. Wedo find, however, inview of the lateness of plaintiff'smotion for dismissal, and the extensive preparation

on the part of the defense, that the trialcourt should have attached asa condition to the dismissal a more reasonable award of costs and attorney fees. It iswell settled that

an award of attorney fees be based upon competent evidence. First SecurityBk. of Bozeman v. Tholkes (1976), 169 Mont. 422, 429, 547 P.2d 1328, 1331; Phennicie v. Phennicie (1979), Mont. 

## , 604 P.2d 787, 791, 36 St.Rep. 2378, 2383. Here, the DistrictCourt awarded defendant $10 for costs and $75 for attorney fees. Despite this fact, defendant submitted detailed documentation to the court that it had expended $881.93 incosts and legal fees. The record does not reveal whether plaintiff disputed the amount or descriptions of the services and expenses. Nor does there appear any rationale by the trialcourt for the award or any considerationof plaintiff's financial ability topay. The award appears tobe nothing more than an arbitrary figure that the DistrictCourt selected. There 

### is littlefrom which an appellate court could review the reasonableness of the award. Inview of the documents and exhibits submitted in the record, 

### we find that

a more reasonable award of costs and attorney fees 

### isproper, and 

### we direct the court to hold a hearing regarding the determination of costs and reasonable attorney fees.

### Accordingly, the judgment of the District Court is affirmed in part. The court is directed to hold a hearing and award a reasonable figure with respect to costs and attorney fees.

We concur:

Justices 

# &