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Have you ever had a plaintiff dead to rights with a dispositive motion, and instead of opposing the motion, the plaintiff moves for voluntary dismissal?  We have, and it can be annoying as hell, especially if the judge is one of those who would rather not decide anything – and grants the plaintiff’s motion.

What if you had a better judge, though?  Did you know that a judge has discretion to respond to such a motion by dismissing the case with prejudiceSee Graham v. Mentor Worldwide LLC, 998 F.3d 800 (8th Cir. 2021).

In Graham, the plaintiff did everything she could to stay out of federal court.  The plaintiff sued the manufacturer of breast implants – a Class III PMA medical device – because her implants ruptured after the plaintiff was in a car accident.  Id. at 802.  But that’s not all.  In the same action she also sued the nondiverse driver of the other car in the accident, as well as the hospital in which the implantation surgery had occurred for strict liability as the intermediate seller of the implants.  Id.  And she brought suit in St. Louis County, Missouri, one of the most notoriously pro-plaintiff jurisdictions in the country.

The defendant removed, claiming both fraudulent joinder (as to the hospital) and fraudulent misjoinder (as to the negligence claim over the auto accident).  Id.  The defendant also followed up with, what else, a preemption motion.  Id. at 803.  Plaintiff moved to remand, but lost on both grounds.  Id.  First, there was no possible basis for hospital strict liability in Missouri, so the hospital was fraudulently joined.  Id.  The Graham decision doesn’t discuss this much (because plaintiff did not appeal the ruling), but our 50-state survey on this topic indicates that the decision was correct.  Second, the auto accident claim had nothing to do with the product liability allegations, so the court found fraudulent misjoinder, and severed and remanded that claim against the only other non-diverse defendant.  Id.  Plaintiff eventually attempted to appeal that issue.  Id.

So the plaintiff in Graham couldn’t run back to state court.

On preemption, though, the plaintiff caught a break.  The court denied dismissal based on plaintiff’s allegation that she had been implanted “as part of a clinical trial approved by the FDA.”  Id.

The defendant had records disproving plaintiff’s false IDE allegation, and almost immediately threatened Rule 11 sanctions and to move imminently for summary judgment.  So the plaintiff couldn’t hide, either.  Rather than wait for that motion, plaintiff again tried to run, moving to dismiss her own action voluntarily without prejudice under Fed. R. Civ. P. 41(a).  Id.  Setting up the issue we described at the outset, the district court dismissed plaintiff’s complaint “with prejudice because [plaintiff’s] failure to give a reason for wanting to dismiss without prejudice reflected an inappropriate purpose of finding a more favorable forum or to escape an undesirable outcome.”  Id. (citation and quotation marks omitted).

On appeal, the Eighth Circuit first dodged the knotty fraudulent misjoinder issue.  Whether or not misjoinder existed ultimately didn’t matter because in the interim that jurisdictional defect had been cured by the severance and remand.

A district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered. . . .  What matters is that the district court dismissed the jurisdictional spoiler prior to judgment.  As the district court had diversity jurisdiction when it entered final judgment, there is nothing to remand.

Graham, 998 F.3d at 804 (citation and quotation marks omitted).  That’s an interesting procedural point to remember, but alone would not have caused us to discuss the Graham case.

What’s much more significant to us is affirmance of a dismissal with prejudice entered in response to a plaintiff’s motion for voluntary dismissal without prejudice.  The plaintiff offered no justification for invoking Rule 41(a) in the face of the defendant’s imminent summary judgment preemption motion.  That supported the court’s discretionary dismissal:

When deciding whether to allow voluntary dismissal, the court should consider whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendant.  Likewise, a party is not permitted to dismiss merely to escape an adverse decision nor to seek a more favorable forum.

Id. at 804-05 (citations and quotation marks omitted).  Given the plaintiff’s failure to assert any proper basis for dismissal without prejudice, it did not matter that the case was recently filed or that no discovery had occurred.  Id. at 805.  Even on appeal, plaintiff “still fail[ed] to provide a justification for her motion.”  Id.  Graham emphasized “the importance of inquiring into whether a party has a proper explanation for its desire to dismiss and whether a party’s motive in requesting a voluntary dismissal is merely to seek a more favorable forum.”  Id.

The court cited several cases, and we reviewed them.  Significantly, none of those cases had actually affirmed what was done here:  a with-prejudice dismissal in response to a plaintiff’s motion for voluntary dismissal without prejudice.  We also reviewed the defendant’s brief in Graham as appellee, and found no cases from any circuit court affirming a dismissal with prejudice.

Rule 41(a) “implicitly permits the district court to dismiss an action with prejudice in response to a plaintiff’s motion for dismissal without prejudice.”  Id. at 805 (quoting Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995)).  But Jaramillo had reversed for lack of notice.  Id.  Critically, the defendant in Graham did not make the same mistake – having argued in response to the plaintiff’s motion that “the action should be dismissed with prejudice.”  Id. at 803.  That was sufficient notice.  Given plaintiff’s repeated machinations to avoid federal court, and lack of any other explanation, the with-prejudice dismissal was well within the district court’s discretion:

[Defendant’s] motion response gave [plaintiff] notice that dismissal with prejudice was at issue, and [plaintiff] had multiple opportunities to respond but did not do so – in her reply to the district court; by filing a motion to reconsider after the district court dismissed with prejudice; and in her briefs on appeal. . . .  The only relief [plaintiff] seeks on appeal (other than remand) is the grant of voluntary dismissal without prejudice, reinforcing the inference that her motive is to avoid an adverse judgment in an unfavorable forum.


As far as we can tell, the Graham decision affirming dismissal with prejudice as a response to an inadequately explained Rule 41(a) voluntary dismissal motion is a result of first impression in the federal courts of appeals.  Now, if a plaintiff tries the same shenanigans in one of our cases, we have on-point appellate precedent to support a response seeking dismissal with prejudice.