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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Excel Fortress Limited, et al.,

Plaintiffs,

v. 

Vaughn La Verl Wilhelm, et al.,

Defendants.

No. CV-17-04297-PHX-DWL

ORDER 

The operative complaint in this case (Doc. 62) asserts the following seven counts: 

(1) violations of the Texas Uniform Trade Secrets Act, (2) violations of the Federal Defend 

Trade Secrets Act, (3) business disparagement, (4) tortious interference, (5) breach of 

contract, (6) negligence, and (7) conversion. In counts 1 and 2, five individuals and entities 

are named as defendants: Vaughn La Verl Wilhelm, Ryan McHugh, Eversource Capital 

LP, Eversource Group, LP, and Eversource Global Technology LLC. (Id. at 15-16.) Count 

3, 6, and 7 are asserted only against Wilhelm. (Id. at 17, 19-20.) Count 4 seems to be 

asserted against all five defendants. (Id. at 18.) Count 5 is asserted only against Wilhelm 

and McHugh. (Id. at 18-19.) 

Now pending before the Court is Plaintiffs’ motion, under Federal Rule of Civil 

Procedure 41(a)(2), to dismiss most of these counts and defendants without prejudice. 

(Doc. 123.) Specifically, Plaintiffs move to dismiss all counts without prejudice as to four 

of the defendants (McHugh and the three Eversource entities) and move to dismiss Counts 

1 and 2 without prejudice as to defendant Wilhelm. (Id.) Plaintiffs further state they will 
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“agree to condition the dismissal without prejudice upon the trade secret claims (Counts I 

and II) being refiled in this Court and before the Honorable Dominic W. Lanza.” (Doc. 

123 at 4.)

In their response, Defendants don’t oppose the relief sought by Plaintiffs but believe 

the dismissal should be conditioned on a requirement that all of the dismissed counts—not 

just the trade secret claims in Counts 1 and 2—must be re-filed in this Court. (Doc. 127 at 

1-2.) 1 

The Court agrees with Defendants. Plaintiffs haven’t attempted to explain why the 

condition they concede should be applied to their dismissal of Counts 1 and 2 shouldn’t 

also apply to their dismissal of the remaining counts. 

Because Plaintiffs didn’t agree to this condition in their motion, the Court cannot 

simply grant their motion. Instead, the court must “grant[ ] to the plaintiff the option to 

refuse the voluntary dismissal if the conditions imposed are too onerous.” Lau v. Glendora

Unified Sch. Dist., 792 F.2d 929, 930 (9th Cir. 1986). To accomplish this, the court must 

“provide [Plaintiffs] a reasonable period of time within which to refuse the conditional 

voluntary dismissal by withdrawing [their] motion for dismissal or to accept the dismissal 

despite the imposition of conditions.” Id. at 931.

Accordingly, IT IS ORDERED that Plaintiffs have 7 days, from today’s date, to 

consider whether to accept the proposed dismissal on the terms outlined above or to 

withdraw their motion to dismiss. Plaintiffs must, before the expiration of this period, 

inform the Court of their decision by filing a notice through the CM/ECF system. A failure 

to respond within this period will be deemed an acceptance of the Court’s proposed terms.

If Plaintiffs accept these terms (or fail to respond), the Court will issue a separate 

order granting the motion to dismiss (Doc. 123) on the following terms: (1) all claims 

against defendants McHugh, Eversource Capital LP, Eversource Group, LP, and 

Eversource Global Technology LLC will be dismissed without prejudice, with the 

condition that, if Plaintiffs seek to reassert any of those claims in the future, such claims 

 1 After Defendants’ response was filed, Plaintiffs informed the Court that they would 

not be submitting a reply.
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must be refiled in this Court before the undersigned judge; and (2) Claims 1 and 2 against 

defendant Wilhelm will be dismissed without prejudice, with the condition that, if Plaintiffs 

seek to reassert any of those claims in the future, such claims must be refiled in this Court 

before the undersigned judge.

Dated this 24th day of January, 2019.