                  UNITED STATES COURT OF APPEALS
                      FOR THE EIGHTH CIRCUIT


                               No. 00-3884



In the Matter of:                            *
                                             *
Oak Grove Farm,                              *
                                             *
                      Debtor                 *
                                             *
----------------------------------           *
                                             *
OAK GROVE FARM LIMITED PARTNERSHIP,          *   Appeal from the United
                                             *   States District Court
          Plaintiff - Appellee,              *   For the District of
                                             *   Nebraska.
          versus                             *
                                             *      [UNPUBLISHED]
                                             *
CONAGRA, INC., a Delaware Corp.,             *
                                             *
          Defendant - Appellant.             *
                                             *


                      Submitted: June 13, 2001
                        Filed: June 29, 2001


Before WOLLMAN, Chief Judge, BOWMAN and HAMILTON,1 Circuit Judges.


PER CURIAM.

     On or about August 29, 1994, Oak Grove Farms Limited
Partnership (Oak Grove) and ConAgra, Inc. (ConAgra) entered into a
“Hog Purchase Contract” (the Contract). (J.A. 13, 49). Under the
Contract, Oak Grove agreed to sell and ConAgra agreed to buy hogs
at certain prices and in certain quantities as specified in the


     1
      The Honorable Clyde H. Hamilton, United States Circuit Judge
for the United States Court of Appeals for the Fourth Circuit,
sitting by designation.
Contract.   On November 5, 1999, Oak Grove filed for bankruptcy
protection under Chapter 11 of the United States Bankruptcy Code in
the United States Bankruptcy Court for the District of Nebraska.

     On December 21, 1999, Oak Grove filed an adversary complaint
against ConAgra in the bankruptcy court. The adversary complaint
was amended on January 5, 2000.         In its amended adversary
complaint, Oak Grove asserted two claims against ConAgra, one for
breach of contract, the other for restraint of trade under Nebraska
Revised Statute § 59-805.2 The amended adversary complaint sought
damages in excess of $2,000,000.

     On January 19, 2000, ConAgra moved to withdraw the adversary
complaint to the United States District Court for the District of
Nebraska. On April 3, 2000, the bankruptcy court issued a report
and recommendation, recommending the withdrawal of the action. On
April 24, 2000, the district court adopted the bankruptcy court’s
report and recommendation, and the case was withdrawn to the
district court.

     On May 10, 2000, ConAgra filed an answer to the breach of
contract claim and a motion to dismiss the restraint of trade
claim. Following briefing on the motion, the district court denied
ConAgra’s motion to dismiss the restraint of trade claim.

     On June 14, 2000, Oak Grove served its initial disclosures as
required by Federal Rule of Civil Procedure 26(a)(1). On July 21,
2000, ConAgra served upon Oak Grove interrogatories and a request
for production of documents. Oak Grove requested an extension of
time to respond to ConAgra’s discovery requests, and ConAgra agreed
to an extension to September 15, 2000.



     2
      The breach of contract claim was premised on the allegation
that ConAgra unilaterally changed the manner in which the market
price of hogs was computed under the Contract and unilaterally
changed the manner in which other price variables were computed
under the Contract. The restraint of trade claim was premised on
the allegation that ConAgra entered into the Contract for the
purpose of driving Oak Grove out of business.

                              - 2 -
     On August 8, 2000, ConAgra filed an amended answer. According
to ConAgra, on August 16, 2000, it served upon Oak Grove notices to
take the depositions of several Oak Grove witnesses during the
weeks of September 25 and October 2, 2000.

     On September 14, 2000, Oak Grove filed a motion to dismiss its
action without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2). According to Oak Grove, it lacked “readily
available funds necessary to cover costs, including essential
expert witness fees, to prosecute the claim.” (J.A. 104).

     On October 17, 2000, the district court3 granted Oak Grove’s
motion to dismiss its action without prejudice and imposed no
conditions (such as the payment of costs and attorney’s fees) on
the dismissal. The district court’s judgment was entered on the
same day. ConAgra appeals. On appeal, ConAgra argues that the
district court abused its discretion in two respects.        First,
ConAgra argues that the district court abused its discretion when
it dismissed the action without prejudice. Second, ConAgra argues
that the district court abused its discretion when it dismissed the
action without imposing any conditions on the dismissal.

     After a careful examination of the record, we conclude the
district court did not abuse its discretion when it dismissed the
action without prejudice and without imposing any conditions on the
dismissal. Accordingly, we affirm. See 8th Cir. R. 47B.

     A true copy.

          Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




     3
      The Honorable Richard G. Kopf, Chief Judge, United States
District Court for the District of Nebraska.

                              - 3 -
