JOE HEATON, District Judge.
Before the court is plaintiff's motion to dismiss pursuant to Fed.R.Civ.P. 41(a)(2). Defendant has objected to the motion. The motion is fully briefed and at issue. The court concludes the motion should be granted and the case dismissed on the terms set forth below.
In this case, plaintiff challenges the timeliness of royalty and overriding royalty payments made by defendant Continental Resources Inc., as operator of oil and gas wells in which plaintiff and others have an interest. It seeks to recover unpaid interest on what it alleges are late-paid proceeds, based on Oklahoma's Production Revenue Standards Act, 52 Okla. Stat. §§ 570.1 et seq., and similar provisions of the laws of other states. Plaintiff brings the case as a putative class action, seeking to recover on behalf of a class composed of royalty owners in Oklahoma, Colorado, Montana, North Dakota, South Dakota and Wyoming.
The case was originally filed in the District Court of Grady County, Oklahoma, on June 13, 2013. Defendant was served on July 5, 2013. It removed the case to this court, pursuant to the Class Action Fairness Act of 2005, on August 1, 2013. Plaintiff has not challenged the propriety of the removal but, on August 14, 2013, filed the present motion seeking dismissal of the case without prejudice. The following day, August 15, defendant filed an amended answer asserting a counterclaim.
Defendant argues the motion should be denied as it represents forum shopping on the part of the plaintiff. It relies on Eighth Circuit authority, including
It is true that the record evidence does not directly establish plaintiff's motion as being motivated by a search for a more favorable forum. Of course, plaintiff does not exactly deny it either. If, in the circumstances existing here, the disposition of the motion ultimately turned on that factor, the court would set the matter for hearing and listen, with considerable interest, to plaintiff's evidence and argument suggesting some other motivation. However, the court concludes in the particular circumstances of this case that plaintiff's apparent motivation is not determinative.
Fed.R.Civ.P. 41(a)(1) permits a plaintiff to dismiss a case without permission of the court so long as it does so prior to the filing of an answer or motion for summary judgment. Here, defendant had answered prior to plaintiff's effort to dismiss, so the provisions of Fed.R.Civ.P. 41(a)(1) are inapplicable. The portion of the rule which plaintiff seeks to invoke is 41(a)(2), which permits dismissal only by court order and "on terms that the court considers proper." Subsection (a)(2) further provides that the case cannot be dismissed over the defendant's objection if defendant had pleaded a counterclaim before the motion to dismiss was served.
The rule requiring a court order is designed "to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions."
Addressing those concerns here, the court concludes, with some hesitation, that "legal prejudice" within the meaning of the above authorities has not been shown. The question is close due to the absence of any "sufficient explanation" by the plaintiff of the basis for the dismissal. Notwithstanding the absence of direct evidence on the point, the court has little doubt that the reason for the requested dismissal is pursuit of what plaintiff views as a more favorable forum — forum shopping. However, under the above cases, dismissals for "tactical advantage" or for the purpose of proceeding in state court do not, in and of themselves, without more, constitute "legal prejudice." See
Here, the other practical considerations cut in favor of plaintiff. Plaintiff's claims are based on alleged violations of state, rather than federal, law. The case is in its earliest stages, having been filed only a couple months ago. There is no indication that any meaningful trial preparation has occurred. Plaintiff filed the motion soon after the removal, promptly raising the issues now before the court. In short, there is no apparent prejudice to defendant other than losing access to the forum it prefers. That by itself is insufficient, under the referenced authorities, for rejecting a plaintiff's effort to dismiss.
As noted above, the court reaches that conclusion with some hesitation. As a general proposition, forum shopping is not favored. Further, the various Tenth Circuit authorities noted above addressing Rule 41 do so in contexts other than that of a case removed pursuant to the Class Action Fairness Act ("CAFA"). That Act arguably suggests Congress' view that federal courts should be somewhat less willing to assume the state forum is a comparable one in evaluating potential prejudice to the defendant or the parties generally.
Defendant also attaches significance to the fact it has filed a counterclaim.
Given the absence of prejudice to defendants beyond a preference for a federal forum, and the non-applicability of the just stated "counterclaim" limitation, the court concludes plaintiff's motion should be granted.
As noted above, a dismissal under Fed.R.Civ.P. 41(a)(2) is "on terms the court considers proper." To minimize the unfairness to defendant of being forced to litigate again in a second and different forum (assuming plaintiff's refiling of the case elsewhere),
For the reasons stated, plaintiff's motion to dismiss [Doc. #14] is