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 District Court of the Second Judicial District, in and for the County of Silver BOW, alleging 

that she was unlawfully discharged from her employment with 

Albertsons, Inc., where she was employed as a meat wrapper. 

The complaint alleged that her discharge was discriminatory, 

in violation of both the Montana State Constitution and a 

labor agreement between the Amalgamated Meat Cutters and 

Butcher Workmen of North America, Local No. 333, AFL-CIO, of 

which she was a member. Plaintiff sought back 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 at which 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 case was set for 

a trial by jury on April 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 as witnesses at the 

pretrial conference. Accompanying the list was a notice for 

the taking of the depositions of 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 on March 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 support an additional theory of 

liability against the defendant for wage and sex discrimination. Plaintiff advised the court that these witnesses 

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 extensive 
pretrial 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 for plaintiff were eventually 

recovered. 

The District Court granted plaintiff's motion and 

entered an order that the action be dismissed without 

prejudice. Defendant thereafter filed a motion to alter or 

amend the order, or to condition such dismissal upon the 

attachment of certain conditions. In support of its motion, 

defendant filed affidavits of attorney fees, costs and 

expenses which it felt could not be of benefit in any future 

action. The costs totaled $881.93. Defendant also estimated its potential liability for back wages in a future 

action to be approximately $17,573.34. Defendant moved for 

an order tolling back-pay liability from the day which had 

been originally set for the trial to the time of the entry 

of a judgment in any future action. 

In response to these motions, the District Court entered 

an order on April 24, 1979 amending its April 2 order. That 

order directed plaintiff to pay defendant $85 for filing 

costs and attorney fees presently incurred, if the plaintiff 

sought to institute another action in the future. The 

District Court refused to consider, however, the tolling of 

any back-pay liability during the pendency of any new 

action. 

On May 18, 1979, plaintiff filed another separate 

action against defendant and her union in which she alleged 

that she had been unlawfully and discriminatorily discharged 

from her employment. In the complaint, plaintiff sought all 

lost wages, seniority benefits and general damages. hat 

action is still pending. 
Defendant appeals from the ruling of the District Court 

in its April 2 and April 24 orders. 

Three issues are raised for our consideration upon 

appeal : 

1. Whether the District Court erred in granting plaintiff's motion to dismiss without prejudice on the day before 

trial? 

2. Whether the District Court erred in refusing to 

toll back-pay liability of defendant which will accrue from 

the date originally scheduled for trial to the date of entry 

of any judgment recovered in a possible future action? 

3. Whether the District Court erred in requiring that, 

as a condition precedent to plaintiff bringing another 

action, plaintiff pay defendant a sum in the amount of $85 

for attorney fees and filing costs already incurred? 

The issues raised by defendant in this case require 

this Court to interpret Rule 41 (a) (2) of the Montana Rules 

of Civil Procedure. This rule is identical in all respects 

to Rule 41(a)(2) of the Federal Rules of Civil Procedure, 

which has been interpreted by many authorities. The interpretations under the federal.rule have persuasive application to an interpretation of the state rule because of the 

identical language. 

Rule 41(a), M.R.Civ.P. provides in pertinent part: 

"Voluntary dismissal - effect thereof. 

(1) By plaintiff - by stipulation. Subject 

to the provisions of Rule 23(c), of Rule 66, 

and of any statute of the state of Montana, 

an action may be dismissed by the plaintiff 

without order of court (i) by filing a notice 

of dimissal at any time before service by the 

adverse party of an answer or of a motion for 

summary judgment, which ever first occurs, or 

(ii) by filing a stipulation of dismissal 

signed by all parties who have appeared in the 

action. Unless otherwise stated in the notice 

of dismissal or stipulation, the dismissal is 

without prejudice. 
" (2) By order of court. 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. . . . Unless otherwise 

specified in the order, a dismissal under this 

paragraph is without prejudice." 

It is clear that the granting of a motion for voluntary 

dismissal under Rule 41 (a) (2) is within the sound discretion 

of the trial court and is reviewable only for an abuse of 

discretion. Armstrong v. Frostie Co. (4th Cir. 1971), 453 

F.2d 914, 916; La-Tex Supply Co. v. Fruehauf Trailer Division, Fruehauf Corp. (5th Cir. 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 reasonably whole. 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 the motion is made at an early stage of the 

case, before much has happened, it is more likely to be granted. Although dismissal may 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 defendant will suffer some plain legal prejudice 

other than the mere 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) "is primarily to prevent voluntary dismissals which unfairly affect the other 

side, and to permit the imposition of curative conditions." 

Wright and Miller, supra. 

When a trial court decides to grant a motion for voluntary dismissal under Rule 41(a) (2), it is vested with wide 

discretion in determining what conditions may attach to the 

dismissal. It may, for example, require a plaintiff to pay 

costs and reasonable attorney fees, or it may choose to 

impose no conditions at all: 

"The terms and conditions that may be imposed 

upon the granting of a motion for voluntary 

dismissal are for the protection of a defendant, and in the absence of proper objections 

or showing of proper conditions, the court may 

dismiss without conditions. Each party may be 

required to pay his own costs, but ordinarily 

the dismissal should be conditioned upon the 

payment of costs by plaintiff." Barron and 

Holtzoff, supra, 5914 at 123. 

Plaintiff contends in this case that the trial court 

did not abuse its discretion in dismissing the action and 

awarding defendant $85 for costs and attorney fees. plaintiff argues that the dismissal was proper because of recently 

discovered witnesses and the fact that defendant had suffered no prejudice because the trial had not yet commenced. 

Plaintiff submits that the dismissal was not sought as a 

tactical device to escape 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 substantial prejudice by the dismissal--not only had it engaged in extensive 

pretrial discovery, but it was faced with increasing backpay liability for plaintiff should an unfavorable judgment 

eventually be recovered. 
In considering the positions of the parties, we note 

first that 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), 9 F.R.D. 117. The United States Supreme 

Court has also expressed 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 is a technical failure of proof, there is 

nevertheless a meritorious claim. Cone v. West Virginia 

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 time and a party was not diligent in 

discovery. Pace v. Southern Express Co. (7th Cir. 1969), 

409 F.2d 331; Paturzo v. Home Life Ins. Co. (4th Cir. 19741, 

503 F.2d 333; Shaffer v. Evans (10th Cir. 1958), 263 F.2d 

134; Walker v. Spencer (10th Cir. 1941), 123 F.2d 347. 

We also note that there appears to be no well-settled 

rule with respect to the issue of whether a party's liability may be tolled and attached as a condition in the 

granting of a voluntary dismissal. While a court is generally given wide discretion in imposing conditions under Rule 

41 (a) (2) , and such conditions are not 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 Steel Corp., supra; ~hiladelphia Gear works v. 

Kerotest Mfg. Co. (D.C. Pa. 1951), 101 F.Supp. 820. 
In union Nat. -- Bank, an action for infringement upon 

patents, the court refused to attach as a condition to the 

voluntary dismissal plaintiff's agreement not to assert 

against defendant any claims which were based upon other 

patents which plaintiff might have possessed during the 

pendency of the complaint. Yet, in Philadelphia Gear Works, 

another patent infringement suit, the motion to dismiss was 

granted on the condition that plaintiff would not assert a 

claim against defendant or his vendees or successors in 

title. Authorities interpreting these cases also adopt 

positions that vary. While one authority phrases the general 

rule by stating that a court "may condition dismissal on 

plaintiff's agreement not to assert certain claims in another 

action," another states that "the court will ordinarily 

refuse" such conditions. Wright and Miller, supra, 82366 at 

181; Barron and Holtzoff, supra, 8914 at 125-26. 

In this case, what weighs most heavily in our judgment 

is the extent to which the defendant was prejudiced, if any, 

by the dismissal and whether, if substantial prejudice 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 that defendant may suffer the prospect 

of a second lawsuit or that plaintiff 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 this prejudice could have been cured by imposing conditions. In view 

of the unsettled state of the law with respect to tolling 
liability in future actions, however, we decline to say 

whether the trial court should have attached the tolling of 

any liability for plaintiff's back pay as a condition to the 

dismissal. We leave this matter for the trial court's consideration in the trial of the second action. 

We do find, however, in view of the lateness of plaintiff's motion for dismissal, and the extensive preparation 

on the part of the defense, that the trial court should have 

attached as a condition to the dismissal a more reasonable 

award of costs and attorney fees. It is well settled that 

an award of attorney fees be based upon competent evidence. 

First Security Bk. 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 District Court 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 in costs 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 trial court for the award or any consideration of plaintiff's financial ability to pay. The 

award appears to be nothing more than an arbitrary figure 

that the District Court selected. 

There is little from which an appellate court could 

review the reasonableness of the award. In view of the 

documents and exhibits submitted in the record, we find that 

a more reasonable award of costs and attorney fees is proper, 

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