United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 13-3512
     ___________________________

       Bill Mullen; Michelle Mullen

   lllllllllllllllllllll Plaintiffs - Appellees

                       v.

      Heinkel Filtering Systems, Inc.

         lllllllllllllllllllll Defendant

           Pepperl & Fuchs, Inc.

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 13-3513
     ___________________________

       Bill Mullen; Michelle Mullen

   lllllllllllllllllllll Plaintiffs - Appellees

                       v.

      Heinkel Filtering Systems, Inc.

   lllllllllllllllllllll Defendant - Appellant

           Pepperl & Fuchs, Inc.

         lllllllllllllllllllll Defendant
                 ____________
                     Appeals from United States District Court
                    for the Northern District of Iowa, Waterloo
                                  ____________

                           Submitted: September 8, 2014
                             Filed: October 22, 2014
                                 ____________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                         ____________

WOLLMAN, Circuit Judge.

      Heinkel Filtering Systems, Inc. (Heinkel), and Pepperl & Fuchs, Inc. (Pepperl),
appeal from an order of the district court1 granting Bill and Michelle Mullen’s motion
to dismiss without prejudice. Because the district court did not abuse its discretion,
we affirm.

                                          I.

       In December 2011, Bill Mullen sustained injuries on the job from a centrifuge
manufactured by Heinkel and containing a component part sold and distributed by
Pepperl. Mullen and his wife, Michelle, brought suit against Heinkel and Pepperl in
Iowa state court, seeking damages based on a products-liability theory. In December
2012, Heinkel removed the case to federal district court on the basis of diversity
jurisdiction: the Mullens are Iowa residents, Heinkel is an Ohio corporation with its
principal place of business in Ohio, and Pepperl is a New Jersey corporation with its
principal place of business in New Jersey.



      1
      The Honorable Edward J. McManus, United States District Judge for the
Northern District of Iowa.

                                         -2-
      In February 2013, the magistrate judge2 set the scheduling order. The Mullens’
deadline for disclosing expert witnesses was May 1, 2013. The deadline was later
extended to July 1, 2013. The Mullens failed to name an expert by that date, and they
did not file a motion to extend the expert deadline until August 9, 2013. Following
an August 28, 2013, hearing on the motion, the magistrate judge entered an order on
September 4, 2013, refusing to extend the expert disclosure deadline, finding that the
Mullens’ attorney “simply forgot about the deadline[,]” which did not constitute
“excusable neglect” as required by Federal Rule of Civil Procedure 6(b).

       The following day, the Mullens filed a motion to dismiss without prejudice. In
their brief supporting the motion, the Mullens stated that because of recent discovery
disclosures, they intended to add defendants who had modified, inspected, or serviced
the centrifuge. Although the Mullens had not yet taken the depositions necessary to
identify these defendants, they argued that they would probably destroy diversity. The
Mullens reasoned that these additional defendants were “more than likely Iowa[-
]based, since the machine is located [t]here.” Furthermore, the Mullens argued that
Heinkel and Pepperl would not be prejudiced, since the case had not progressed very
far. Both Heinkel and Pepperl filed briefs in opposition.

       On September 18, 2013, the Mullens filed a motion requesting reconsideration
of the magistrate judge’s ruling on the expert deadline, arguing that without expert
testimony, the case would not be adjudicated on the merits because the Mullens would
be unable to meet their burden of proof. On that same day, the Mullens also filed a
motion to compel discovery. On October 21, 2013, the district court entered an order
reserving ruling on both the motion to reconsider the magistrate’s expert-deadline
ruling and the motion to dismiss without prejudice until the magistrate judge resolved
the motion to compel.


      2
       The Honorable Jon Stuart Scoles, Chief United States Magistrate Judge for
the Northern District of Iowa.

                                         -3-
       The magistrate judge held a hearing on the motion to compel discovery on
November 4, 2013. Before any ruling was entered on the motion, the district court
entered an order on November 8, 2013, granting the Mullens’ motion to dismiss
without prejudice. The district court’s order set forth a brief description of the case,
noting that the case had “bec[o]me entangled in discovery and procedural disputes.”
The district court gave no reason for granting the dismissal, other than stating that the
“court considers it proper that under these circumstances the plaintiffs’ motion to
dismiss without prejudice shall be granted.” The district court ordered the parties to
bear their own costs, awarded no fees to Heinkel and Pepperl, and entered no ruling
on the motion to reconsider the magistrate judge’s expert-deadline ruling.

       At the time of the dismissal, very little discovery had been completed. Heinkel
had responded to some interrogatories and had produced 3500 pages of documents,
but had objected to each of the Mullens’ requests for production. The Mullens had not
yet served discovery on Pepperl, nor had they responded to the defendants’ discovery
requests. As of September 2013, no depositions had been taken.

       As disclosed in the supplemental materials proffered by the Mullens (their
motion for permission to file we now grant), the Mullens filed suit in Iowa state court
following the dismissal without prejudice. The state court complaint added Control
Application & Maintenance, Inc. (Control Application), as a defendant, alleging that
Control Application had serviced and maintained the centrifuge. Control Application
is an Iowa corporation, having its principal place of business in Illinois.

      Heinkel and Pepperl challenge the district court’s grant of the Mullens’ motion
to dismiss without prejudice. They also challenge the district court’s failure to
condition the dismissal on the payment of fees and costs.




                                          -4-
                                          II.

       Federal Rule of Civil Procedure 41(a)(2) provides that after a defendant has
served its answer, “an action may be dismissed at the plaintiff’s request only by court
order, on terms that the court considers proper.” We review the district court’s
decision to grant a plaintiff’s motion for voluntary dismissal for abuse of discretion.
Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013). A district court abuses its
discretion:

      when a relevant factor that should have been given significant weight is
      not considered; when an irrelevant or improper factor is considered and
      given significant weight; and when all proper factors, and no improper
      ones, are considered, but the court, in weighing those factors, commits
      a clear error of judgment.

Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213 (8th Cir. 2011) (quoting
Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). When deciding
whether to exercise its discretion to allow a voluntary dismissal, the “district 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 defendants.’” Donner, 709 F.3d at
697 (quoting Thatcher, 659 F.3d at 1213-14).

       The district court’s order granting the voluntary dismissal is abbreviated to the
point of terseness, but we “must be mindful that the district courts are closer to the
facts and the parties, and that not everything that is important about a lawsuit comes
through on the printed page.” Kern, 738 F.2d at 970. All of the parties submitted
briefs supporting or opposing the motion to dismiss, so the relevant factors were
before the district court, including the Mullens’ explanation that the recent discovery
disclosures had alerted them of the need to add defendants who performed
maintenance on the centrifuge and who would likely destroy diversity. The magistrate


                                          -5-
judge’s adverse ruling on the Mullens’ motion to extend the expert deadline may have
precipitated the motion for voluntary dismissal, and we recognize that “a party is not
permitted to dismiss merely to escape an adverse decision nor to seek a more
favorable forum.” Donner, 709 F.3d at 697. In contrast to the situation in Donner,
however, the Mullens’ post-dismissal suit against a corporation that had serviced and
maintained the centrifuge stated a legally viable claim against a diversity-destroying
defendant.

       The grant of voluntary dismissal did not result in a waste of judicial time and
effort, because the case had not progressed very far. The magistrate judge held two
hearings on discovery disputes, but the case was still in the early stages of discovery.
We have upheld granting motions to dismiss without prejudice when the cases were
much further along. See Metro. Fed. Bank of Iowa, F.S.B. v. W. R. Grace & Co., 999
F.2d 1257, 1262-63 (8th Cir. 1993) (upholding voluntary dismissal after some
discovery had been completed and the defendants filed a motion for summary
judgment); Kern, 738 F.2d at 971 (upholding voluntary dismissal after the plaintiff
had presented all but one witness at trial).

       Finally, Heinkel and Pepperl have pointed out no prejudice resulting from the
dismissal. Legal prejudice means “something other than the necessity that defendant
might face of defending another action.” Kern, 738 F.2d at 970. The expense and
effort of drafting and responding to discovery prior to dismissal does not constitute
legal prejudice. See id. Neither does the loss of the tactical advantage of the
magistrate judge’s ruling denying the Mullens’ motion to extend the expert deadline.
See Hoffmann v. Alside, Inc., 596 F.2d 822, 823 (8th Cir. 1979) (per curiam).

      Heinkel and Pepperl point to several cases in which we have upheld a district
court’s denial of a motion to dismiss without prejudice. “That the denial of the motion
would not have been reversible as an abuse of discretion, however, does not mean that
granting it was such an abuse. The very concept of discretion presupposes a zone of

                                          -6-
choice within which the trial courts may go either way.” Kern, 738 F.2d at 971.
Accordingly, we conclude that the district court did not abuse its discretion by
granting the Mullens’ motion to dismiss without prejudice.

                                          III.

       Heinkel and Pepperl contend that the district court abused its discretion by
failing to award costs and fees. We disagree. “[P]ayment to the defendant of the
expenses and a reasonable attorney fee may properly be a condition for dismissal
without prejudice under Rule 41(a) but . . . omission of such condition is not
necessarily an arbitrary act.” Kern, 738 F.2d at 972 (quoting N.Y., Chi. & St. Louis
R.R. Co. v. Vardaman, 181 F.2d 769, 771 (8th Cir. 1950)). “The time and effort
invested by the parties, and the stage to which the case had progressed, are among the
most important factors to be considered in deciding whether to allow a dismissal
without prejudice, and, if so, on what conditions.” Id. Here, no great progress had
been made in the case. The Mullens had not served discovery on Pepperl. Heinkel
had responded to some interrogatories and produced 3500 pages of documents, but
had objected to each of the Mullens’ requests for production. Two months prior to the
dismissal, no depositions had been taken; it is unclear from the record if any
depositions had been taken at the time of the dismissal. Furthermore, almost all of the
efforts expended by Heinkel and Pepperl can be utilized in the state litigation; indeed,
at oral argument, Heinkel’s representative could not name any discovery obtained in
this proceeding that could not be used in the state proceeding. In Vardaman, we
upheld the district court’s conditioning a voluntary dismissal on the payment of costs,
but not attorney’s fees, when some depositions had been taken but the case had not yet
progressed to trial. 181 F.2d at 770, 772. In the circumstances of the present case, we
hold that the district court did not abuse its discretion by granting the voluntary
dismissal without awarding fees and costs.




                                          -7-
                             IV.

The district court’s order is affirmed.
                 ______________________________




                             -8-
