                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4244
                                   ___________

Stanley Beavers, Jr.,                   *
                                        *
              Appellee,                 *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the
Bob Bretherick, individually and in     * Eastern District of Arkansas.
his official capacity as the Jail       *
Administrator of Crittenden County;     *       [UNPUBLISHED]
Dick Busby, individually and in his     *
official capacity as Sheriff of         *
Crittenden County; Crittenden           *
County, Arkansas,                       *
                                        *
              Appellants.               *
                                   ___________

                             Submitted: April 9, 2007
                                Filed: April 16, 2007
                                 ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

PER CURIAM.

       Bob Bretherick, former Administrator of the Crittenden County (Arkansas)
Detention Center (CCDC); Dick Busby, Sheriff of Crittenden County, Arkansas; and
Crittenden County, Arkansas (collectively, the Appellants); appeal from the District
Court's order granting a motion by Stanley Beavers Jr. to voluntarily dismiss his case
without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.
We reverse and remand with instructions.

      On September 10, 2004, Beavers filed a 42 U.S.C. § 1983 complaint, alleging
that Bretherick violated Beavers's constitutional rights by using excessive force
against Beavers on September 10, 2001, while Beavers was incarcerated at CCDC.
The complaint also raised claims against Busby and Crittenden County.

       On August 15, 2005, the Appellants filed a joint motion for summary judgment,
a brief in support of the motion, and a statement of facts controverting the allegations
in Beavers's complaint. With their motion, the Appellants submitted an affidavit from
Bretherick denying that he had used excessive force as asserted by Beavers in his
complaint. The Appellants also submitted an affidavit from Busby denying
knowledge of the alleged September 10, 2001, incident until a much later time. Busby
also averred that Crittenden County had comprehensive policies in place requiring
employees to comply with applicable law and prohibiting employees from using
excessive force against CCDC inmates.

       Beavers did not file a response to the Appellants' motion for summary
judgment. The District Court contacted Beavers's attorney of record about his failure
to respond to the Appellants' motion. The attorney indicated that he was no longer
employed at the law firm engaged to represent Beavers, was no longer personally
representing Beavers, and would contact his former partners to arrange for substitution
of counsel.

       On September 16, 2005, another member of the law firm (who did not enter a
formal appearance in Beavers's case and whose license to practice in the District Court
was suspended for nonpayment of dues) filed a motion for voluntary dismissal of
Beavers's complaint without prejudice under Rule 41(a)(2). This motion stated only
that the District Court had jurisdiction over the matter, that Beavers was seeking

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dismissal without prejudice pursuant to Rule 41(a), and that "no voluntary or
involuntary nonsuits or dismissals" had been previously requested in the case.
Plaintiff's Motion for Voluntary Nonsuit Without Prejudice. The Appellants filed a
joint response on September 21, 2005, objecting to Beavers's motion for voluntary
dismissal.

       On October 6, 2005, the District Court issued an order deferring its ruling on
the summary judgment and voluntary dismissal motions until the lawyer who was
allegedly representing Beavers paid his delinquent dues and had his license to practice
in the court reinstated. In its order, the court observed that "Beavers may have a
meritorious claim at least against Bretherick"1 and that it appeared as if "Beavers's
case fell through the cracks" at the law firm he had engaged to represent him. Order
of Oct. 6, 2005, at 2. The District Court ruled that Beavers's motion for voluntary
dismissal would be granted if the lawyer who filed the motion was reinstated within
fifteen days of the date of the deferral order. If the lawyer was not reinstated, the
motion for voluntary dismissal would be stricken and the court would rule on the
Appellants' motion for summary judgment.

      On October 24, 2005, the District Court granted Beavers's motion and
dismissed his case without prejudice.2 The Appellants' motion for reconsideration of



      1
        In a separate criminal case, Bretherick pleaded guilty to a charge of slapping
Beavers on December 11, 2001, but a second charge related to the conduct at issue in
this case was dismissed.
      2
        Although there is no docket entry indicating that Beavers's attorney complied
with the District Court's order to have his license reinstated, in Beavers's response to
the Appellants' motion for reconsideration of the voluntary-dismissal order, Beavers's
attorney notes that he complied with the court's order and that verification of his
reinstatement was sent to the District Court. We also note that the Appellants failed
to include this document in their appendix.

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the court's dismissal order was summarily denied on November 15, 2005, and this
appeal followed.

       On February 8, 2006, the Appellants filed their brief with this Court. On March
23, 2006, we granted leave to Beavers's attorney to withdraw from the case, and we
directed Beavers to inform the Court within fifteen days whether he intended to retain
other counsel or proceed pro se. We also advised Beavers that failure to respond
would result in an order barring him from filing a brief in this appeal. Despite this
admonition, Beavers failed to respond, and on May 3, 2006, we entered an order
barring Beavers from filing an appellate brief. On July 13, 2006, Beavers's newly
retained counsel filed a motion requesting that we reconsider our earlier decision, and
on August 10, 2006, we denied that motion.

       Rule 41(a)(2) is primarily intended to prevent a plaintiff from voluntarily
dismissing a lawsuit when such a dismissal would "unfairly affect" the defendant. See
Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). The decision to grant
or deny a plaintiff's motion to voluntarily dismiss a lawsuit rests upon the sound
discretion of the district court, and we review the court's decision for abuse of that
discretion. See, e.g., Cahalan v. Rohan, 423 F.3d 815, 818 (8th Cir. 2005). In
determining whether to grant a plaintiff's motion for voluntary dismissal, a district
court should consider the following factors: (1) whether the plaintiff has presented a
proper explanation for the desire to dismiss, (2) whether the defendant has expended
considerable effort and expense in preparing for trial, (3) whether the plaintiff
exhibited "excessive delay and lack of diligence" in prosecuting the case, and (4)
whether the defendant has filed a motion for summary judgment. Paulucci, 826 F.2d
at 783. In general, a district court should not grant a motion for voluntary dismissal
merely because a plaintiff seeks a more favorable forum or wishes to escape an
adverse decision. See, e.g., Cahalan, 423 F.3d at 818. We conclude that in the
circumstances of this case, the District Court abused its discretion in granting
Beavers's motion for voluntary dismissal without prejudice.

                                         -4-
       The District Court determined that Beavers had an arguably meritorious
case—at least against Bretherick. This conclusion, however, is not borne out by the
limited record. With their motion for summary judgment, the Appellants attached a
statement of facts, which they have called undisputed facts, and several affidavits in
support thereof, controverting the facts and denying the allegations asserted by
Beavers in his complaint. Beavers did not respond in any way to the Appellants'
motion, much less establish a genuine issue of material fact for trial. Under the local
rules applicable to federal district courts in Arkansas, a party opposing a motion for
summary judgment "shall file . . . a separate, short and concise statement of the
material facts as to which it contends a genuine issue exists to be tried." D. Ark. R.
56.1(b) (emphasis added). If the opposing party fails to contest the facts described in
the motion for summary judgment, those facts "shall be deemed admitted." Id. 56.1(c)
(emphasis added); Jackson v. Ark. Dep't of Educ., Vocational & Technical Educ. Div.,
272 F.3d 1020, 1027 (8th Cir. 2001) (citing Arkansas local rule 56.1(c) in concluding
that the plaintiff forfeited her right to contest facts when she failed to respond to the
defendant's summary judgment motion), cert. denied, 536 U.S. 908 (2002). Pursuant
to the local rules, then, the facts as described in the Appellants' motion for summary
judgment are the undisputed facts of this case. And those facts do not support
Beavers's claims against the Appellants. Accordingly, the District Court abused its
discretion in ruling to the contrary. See, e.g., Metro. Fed. Bank of Iowa, F.S.B. v.
W.R. Grace & Co., 999 F.2d 1257, 1263 (8th Cir. 1993) (observing that if a defendant
demonstrated a valid defense to a plaintiff's claims, a district court would abuse its
discretion by granting a plaintiff's motion to voluntarily dismiss without prejudice).

      The District Court also suggested in its deferral order that Beavers's case
appeared to have "[fallen] through the cracks when his lawyer left the law firm
engaged to represent him" and that there was "no indication that anyone at the [firm]
was even aware of [Beavers's] case" until the court contacted Beavers's attorney of
record to inquire about his response to the Appellants' motion for summary judgment.
Order of Oct. 6, 2005, at 2. Because Beavers "could be penalized" if his motion to

                                          -5-
voluntarily dismiss was denied, the court granted the motion without prejudice. Id.
The evidence in the record, however, indicates that correspondence from the
Appellants' attorneys and from the District Court regarding Beavers's case was
regularly directed to the firm as well as to Beavers's attorney of record. On
December 20, 2004, the parties filed a joint discovery-scheduling report with the
District Court, see Fed. R. Civ. P. 26(f), in which another attorney at the law firm
struck the name of Beavers's attorney of record and signed her own name. This
evidence tends to refute the District Court's conclusion that there was "no indication
. . . anyone at the [firm] was even aware of Beavers's case." Moreover, even if there
was support in the record for the District Court's conclusion, Beavers

      voluntarily chose this attorney as his representative in the action, and he
      cannot now avoid the consequences of the acts or omissions of this freely
      selected agent. Any other notion would be wholly inconsistent with our
      system of representative litigation, in which each party is deemed bound
      by the acts of his lawyer-agent . . . .

Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962); see Rodgers v. Curators of
Univ. of Mo., 135 F.3d 1216, 1220 (8th Cir. 1998) ("[B]y virtue of his agency
relationship with his attorneys, appellant is generally bound by the actions (or
inaction) of his attorney when his attorney acts in her representational capacity.").

      We believe that the factors described in Paulucci weighed in favor of denying
Beavers's motion for voluntary dismissal without prejudice. Beavers did not present
any explanation—much less a sufficient explanation—for his desire to dismiss the
complaint. In both the District Court and this Court, Beavers has exhibited a marked
lack of diligence in prosecuting his case. The defendant has expended effort and
expense in preparing for trial and has filed a motion for summary judgment on which
the District Court has not ruled. In these circumstances, we conclude that the District
Court abused its discretion in granting Beavers's motion for voluntary dismissal.



                                         -6-
       We reverse the District Court's order granting Beavers's motion to dismiss, and
we remand the case to the District Court with directions that the court rule on the
Appellants' motion for summary judgment and if the motion is granted that the court
enter a final judgment dismissing the case.
                       ______________________________




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