UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEANNIE SAM individually and on behalf

of her minor daughter M.S.,

Plaintiffs,

v.

STATE OF MICHIGAN, JENNIFER

GRANHOLM, MARIANNE UDOW,

DAVID JOSEPH, DONNA LEHMAN, and

BRIDGES ASSESSMENT CENTER, INC.,

Defendants.

 /

Case No. 08-14787

Honorable Patrick J. Duggan

OPINION AND ORDER

At a session of said Court, held in the U.S.

District Courthouse, City of Detroit, County of

Wayne, State of Michigan, on April 30, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Jeannie Sam (“Sam”) and her thirteen-year old daughter, M.S. (collectively

“plaintiffs”), instituted this action on November 14, 2008, alleging discrimination under

Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Plaintiffs

name six defendants responsible for the alleged discrimination: the State of Michigan,

Michigan’s Governor Jennifer Granholm, former Director of the Michigan Department of

Human Services (“DHS”) Marianne Udow, and DHS employee Donna Lehman

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(collectively “State Defendants”); Macomb County Circuit Court Juvenile Probation

Officer David Joseph (“Joseph”); and Bridges Assessment Center, Inc. (“Bridges”). The

State Defendants, Joseph, and Bridges filed motions to dismiss in late January and early

February 2009. On April 22, 2009, however, plaintiffs filed a Motion for Dismissal

without Prejudice because they have exhausted their financial resources and cannot afford

to continue litigating this case. The State Defendants oppose plaintiffs’ motion and

request that the Court dismiss the case with prejudice on the grounds presented in their

motion to dismiss. The State Defendants also request an award of costs and fees

associated with defending the action.

Because there are outstanding motions and because the State Defendants refuse to

stipulate to dismissal without prejudice, this case can only be dismissed without prejudice

on court order. Fed. R. Civ. P. 41(a)(2). The Federal Rules of Civil Procedure provide

that any such dismissal may be made “on terms that the court considers proper.” Id. The

rules additionally provide that:

[i]f a plaintiff who previously dismissed an action in any court files an

action based on or including the same claim against the same defendant,

the court: (1) may order the plaintiff to pay all or part of the costs of that

previous action; and (2) may stay the proceedings until the plaintiff has

complied.

Fed. R. Civ. P. 41(d).

Although the various defendants have expended some resources in defending this

action, the Court does not believe that a dismissal with prejudice or an award of costs and

fees is necessary or appropriate at this time. Nonetheless, the Court recognizes the

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potential injustice to the defendants should plaintiffs be allowed to refile this case at their

convenience. Therefore, the Court will conditionally grant plaintiffs’ Motion for

Dismissal without Prejudice. 

If Sam or someone else on behalf of M.S. intends to refile this action, such party

shall notify the Court and counsel for the various defendants of that party’s intent to

refile. The Court will then make a determination as to the appropriate amount of costs

that plaintiffs shall pay to the defendants prior to refiling this action. If a complaint is

filed without complying with the provisions of this Order, such a complaint shall be

subject to dismissal.

SO ORDERED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE 

Copies to:

Timothy Barkovic, Esq.

Joshua S. Smith, Esq.

B.J. Belcoure, Esq.

Carolyn Pollock Cary, Esq.

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