UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALLEN W. FLATH, JR.; MARY C.
FLATH,
Plaintiffs-Appellees,

v.

BOMBARDIER, INCORPORATED;
BOMBARDIER RECREATIONAL
PRODUCTS; BOMBARDIER MOTOR                                          No. 99-2519
CORPORATION OF AMERICA,
Defendants-Appellants,

and

J. GRADY MILLER, JR., d/b/a Grady
Miller's,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-98-3205-6-20)

Argued: June 5, 2000

Decided: July 10, 2000

Before MURNAGHAN, WILLIAMS, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: David Michael Collins, BUIST, MOORE, SMYTHE &
MCGEE, P.A., Charleston, South Carolina, for Appellants. Stanley
Lippincott White, WHITE & WHITE LAW OFFICES, P.L.L.C.,
Brighton, Michigan; Justin S. Kahn, KAHN LAW FIRM, Charleston,
South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this appeal, we are asked to review the district court's grant of
a motion for voluntary dismissal made pursuant to Federal Rule of
Civil Procedure 41(a)(2). Because we are confident that the district
court did not abuse its discretion, we affirm its order granting Appel-
lees' Rule 41(a)(2) motion.

I.

On July 15, 1997, Allen Flath was seriously injured in a jet-ski
accident that occurred on Lake Murray in Lexington County, South
Carolina. On November 2, 1998, Mr. Flath and his wife, Dr. Mary
Flath (collectively, the Flaths or Appellees), filed suit in the United
States District Court for the District of South Carolina against Bom-
bardier, Inc., two Bombardier subsidiaries, and J. Grady Miller, Jr.
d/b/a Grady Miller's (collectively, Defendants). The Flaths alleged
negligence and strict-liability causes of action in their complaint and
indicated that their suit was initiated in federal court on the basis of
federal admiralty jurisdiction within the meaning of Federal Rule of
Civil Procedure 9(h). In their complaint, the Flaths alleged that Lake
Murray was a "navigable waterway."

                     2
Defendants filed answers and the parties participated in pre-trial
discovery. In early August 1999, the Flaths' counsel became con-
cerned that Lake Murray might not be a "navigable waterway" and
that federal admiralty jurisdiction might not exist. Recognizing that
the statute of limitations for bringing the case in state court would
expire in July 2000 and concerned that continuing to proceed in fed-
eral court might risk a future dismissal based upon lack of admiralty
jurisdiction, the Flaths' counsel requested that opposing counsel con-
sent to a voluntary motion to dismiss in order to avoid any jurisdic-
tional problems. After opposing counsel refused to consent to the
dismissal, the Flaths filed a motion for voluntary dismissal pursuant
to Federal Rule of Civil Procedure 41(a)(2) on September 28, 1999.

On October 18, 1999, the district court granted the Flaths' motion
for voluntary dismissal, concluding that granting the motion would
not substantially prejudice Defendants. The district court noted that
"much of [the] discovery [conducted to that point] may be used in
state court." (J.A. at 78.) The district court also concluded that Lake
Murray was not a navigable waterway for federal admiralty jurisdic-
tion purposes after it took judicial notice of the fact that Lake Murray
"is a dammed, lockless lake that is wholly contained within the state
and incapable in its current configuration of supporting commercial
shipping." (J.A. at 79-80.) The district court, therefore, also concluded
that it was without jurisdiction over the case, which further supported
granting the Rule 41 motion. On October 22, 1999, the Flaths filed
a virtually identical suit in South Carolina state court. Bombardier,
Inc., and its two subsidiaries (collectively, Appellants), now appeal
from the district court's order granting the Flaths' motion for volun-
tary dismissal.1

II.

Federal Rule of Civil Procedure 41(a)(2) allows a plaintiff volun-
tarily to dismiss an action upon receipt of court approval.2 See Fed.
_________________________________________________________________
1 Grady Miller did not join the appeal.
2 Federal Rule of Civil Procedure 41(a)(2) provides in relevant part:
"(2) By Order of Court. Except as provided in paragraph (1) of this sub-
division of this rule, an action shall not be dismissed at the plaintiff's
instance save upon order of the court and upon such terms and conditions
as the court deems proper. . . . Unless otherwise specified in the order,
a dismissal under this paragraph is without prejudice." Fed. R. Civ. P.
41(a)(2).

                    3
R. Civ. P. 41(a)(2). "The purpose of Rule 41(a)(2) is freely to allow
voluntary dismissals unless the parties will be unfairly prejudiced."
Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987). "A plain-
tiff's motion under Rule 41(a)(2) should not be denied absent substan-
tial prejudice to the defendant." S.A. Andes v. Versant Corp., 788 F.2d
1033, 1036 (4th Cir. 1986). A district court's decision to grant a Rule
41(a)(2) motion "will ordinarily not be reversed except for an abuse
of discretion." Davis, 819 F.2d at 1273.

In this case, the district court carefully considered four factors
before determining that dismissal under Rule 41(a)(2) was appropri-
ate. The district court first considered the "opposing party's effort and
expense in preparing for trial." (J.A. at 78.) The district court noted
that although Defendants had expended time and expense in discov-
ery, "much of this discovery may be used in state court." (J.A. at 78.)
Second, the district court considered whether the Flaths had exces-
sively delayed bringing the motion or demonstrated a lack of dili-
gence. The district court expressly found that the Flaths acted
diligently in informing the district court and opposing counsel of their
concerns about jurisdiction and that any delay was not excessive.
Third, in considering whether the Flaths provided a sufficient expla-
nation of the need for dismissal, the district court determined that the
explanation that the court lacked subject matter jurisdiction also
weighed in favor of granting the motion. In discussing the sufficiency
of this explanation, the district court concluded that it did not possess
subject matter jurisdiction over the case after it determined that Lake
Murray was not a navigable waterway for federal admiralty jurisdic-
tion purposes. Finally, the district court considered the present stage
of the litigation and reasoned that although trial was scheduled to
commence the following month, dismissal remained appropriate in
light of the issue regarding subject matter jurisdiction.3 After weigh-
ing these four factors, the district court granted the Flaths' motion for
voluntary dismissal. Because we agree that the grant of the motion for
dismissal did not substantially prejudice Appellants, we hold that the
district court did not abuse its discretion and affirm its ruling.
_________________________________________________________________

3 There were no motions for summary judgment pending at the time of
the Rule 41(a)(2) motion.

                    4
Appellants focus their argument on appeal on the purported impro-
priety of the district court's conclusion that Lake Murray was not a
navigable waterway and its taking of judicial notice to establish the
facts necessary to support that conclusion. Appellants do not provide
any evidence to support the theory that Lake Murray is a navigable
waterway; instead they attempt to rely upon past federal court cases
involving Lake Murray and the Flaths' assertion in their complaint
that Lake Murray was a navigable waterway. Appellants' claim that
the Flaths are now "bound" by this judicial"admission." (Appellants'
Br. at 8, 12.)

Courts may take judicial notice, in their discretion, of facts that are
"not subject to reasonable dispute in that [they are] either (1) gener-
ally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201.
After a court takes judicial notice of a fact, a party may request an
opportunity to be heard as to the propriety of the court's action, under
Federal Rule of Evidence 201(e). In this case, the district court took
judicial notice of the fact that Lake Murray "is a dammed, lockless
lake that is wholly contained within the state and incapable in its cur-
rent configuration of supporting commercial shipping." (J.A. at 79-
80.) This fact concerns a lake that is within the territorial jurisdiction
of the district court, and, moreover, is a fact capable of accurate and
ready determination by resort to a map. In other words, it is the type
of fact over which judicial notice may be properly exercised. After the
district court exercised its discretion in taking judicial notice of this
fact, Appellants never requested an opportunity to be heard on the
matter, as Rule 201(e) expressly contemplates.

In Alford v. Appalachian Power Co., 951 F.2d 30 (4th Cir. 1991),
we held that we did not possess admiralty jurisdiction over a claim
that arose within the waters of Smith Mountain Lake in Virginia.4 See
id. at 34. As we explained:
_________________________________________________________________

4 Notably, the district court judge presiding over the present dispute
between the Flaths and Appellants served by designation on the panel --
and joined in the majority opinion -- in Alford.

                     5
         [N]avigable water for purposes of admiralty jurisdiction [is
         defined] as a body of water which, in its present configura-
         tion, constitutes a highway of commerce, alone or together
         with another body of water, between the states or with for-
         eign countries over which commerce in its current mode is
         capable of being conducted.

         ...

         Smith Mountain Lake is a dammed, lockless lake lying
         wholly within the State of Virginia. As a body of water by
         itself, it cannot act as a highway of commerce between two
         states or with foreign countries. Nor can it, because of its
         present configuration, become a part of such a highway by
         uniting with other waterways between the states or with for-
         eign countries. Should the dam ever be taken down or
         destroyed and the Roanoke River once again restored as a
         navigable waterway between the states, then claims arising
         from accidents on the river at that time may once again be
         subject to admiralty jurisdiction.

Id. at 32-33. Based upon our opinion in Alford, it is clear to us that
once the district court took judicial notice of the facts concerning
Lake Murray's present configuration it properly concluded that the
lake is not a navigable waterway for purposes of establishing federal
admiralty jurisdiction.5
_________________________________________________________________
5 We reject Appellants' reliance upon Oliver by Oliver v. Hardesty, 745
F.2d 317 (4th Cir. 1984), and Onley v. South Carolina Elec. & Gas Co.,
488 F.2d 758 (4th Cir. 1973), for their contention that Lake Murray is
a navigable waterway. In Oliver by Oliver, this Court reviewed whether
a boating accident that occurred on Lake Murray could support federal
admiralty jurisdiction. We focused exclusively upon the question of
whether an accident involving an injured plaintiff who had been swim-
ming for pleasure bore a close enough relationship to traditional mari-
time activities to invoke admiralty jurisdiction. See Oliver by Oliver, 745
F.2d at 320. Although we concluded that admiralty jurisdiction was
appropriate, we never considered the separate question of whether Lake
Murray was a navigable waterway. In Onley, we denied jurisdiction over
a dispute that arose on the waters of Lake Murray based upon our con-

                   6
Although we conclude that it was entirely appropriate for the dis-
trict court to take judicial notice with respect to the present configura-
tion of Lake Murray and to determine that it was without subject
matter jurisdiction over the case, we emphasize that this ultimate
determination was not essential to the appropriateness of its granting
the motion for voluntary dismissal. The motion for dismissal was
predicated upon Rule 41(a)(2), not upon Rule 12(b)(1) for lack of
subject matter jurisdiction. In considering Rule 41(a)(2) motions, dis-
trict courts often will be within their discretion to dismiss cases even
when they have jurisdiction. Thus, the propriety of the district court's
grant of the motion for voluntary dismissal does not turn upon the
correctness of its supporting conclusion that it was without jurisdic-
tion. Regardless of the correctness of that conclusion, the fact that
jurisdiction might be a stumbling block that could surface some time
_________________________________________________________________
clusion that the action did not bear a significant enough relationship to
traditional maritime activities. See Onley, 488 F.2d at 760. Again, we
never faced the question of whether Lake Murray was a navigable water-
way. Contrary to Appellants' contention, therefore, these cases do not
establish that Lake Murray is a navigable waterway.

We also reject Appellants' contention that the Flaths are bound by
their "judicial admission" that Lake Murray is a navigable waterway.
See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982) ("[N]o action of the parties can confer
subject-matter jurisdiction upon a federal court."); 13 Charles Alan
Wright et al., Federal Practice & Procedure§ 3522, at 66-67 (1984)
("[P]arties cannot waive lack of subject matter jurisdiction by express
consent, or by conduct, or even by estoppel . . . ."). Whether a body of
water is a navigable waterway for purposes of creating federal admiralty
jurisdiction is a legal conclusion. Parties may not create jurisdiction by
alleging the very legal conclusion upon which our jurisdiction would be
based; they can only demonstrate that our jurisdiction is appropriate by
alleging the facts that would support that legal conclusion. See id. at 63
("[T]he facts showing the existence of jurisdiction must be affirmatively
alleged in the complaint."). Significantly, the Flaths did not allege in
their complaint that Lake Murray is a body of water which, in its present
configuration, is capable of supporting commercial activity between
states or with foreign countries. See Alford v. Appalachian Power Co.,
951 F.2d 30, 32 (4th Cir. 1991) (defining the term"navigable waterway"
for purposes of federal admiralty jurisdiction).

                    7
in the future would justify the grant of a motion for voluntary dis-
missal in the absence of substantial prejudice to Defendants. We,
therefore, need only determine whether the district court's determina-
tion that granting the motion for voluntary dismissal did not substan-
tially prejudice Defendants constituted an abuse of discretion.

As the district court noted, the parties had engaged in a consider-
able amount of discovery, although apparently not all had been com-
pleted. Appellants contend that because they had expended the time
and expense related to this pre-trial process, the dismissal served to
prejudice them.6 We disagree. It is unclear from the record just what
discovery still needed to be completed, but we are confident that the
discovery that had taken place at the time of dismissal was not per-
formed for naught. Within days of the district court's order dismissing
this case, the Flaths initiated a virtually identical suit in state court in
South Carolina. As the district court noted, much, if not all, of the dis-
covery performed during the course of the federal phase of the case
may be used in state court. We do not believe that the Rule 41(a)(2)
dismissal substantially prejudiced Appellants, and we are satisfied
that the district court did not abuse its discretion.7
_________________________________________________________________
6 At oral argument, the parties disputed the extent to which each had
complied with various discovery requirements, the causes for previous
delays in providing discovery materials, and which party, if any, received
a tactical advantage by virtue of the dismissal. The record before us is
unclear on these matters. The district court was in the best position to
resolve these various disputes and we accord it considerable deference.
The district court's thorough consideration of the Flaths' motion for vol-
untary dismissal and its decision to grant that motion informs us that it
concluded that dismissal remained appropriate despite these contentions.

7 Appellants also argue that even if the Rule 41(a)(2) dismissal was not
improper, the district court should have imposed conditions restricting
discovery in state court. Rule 41(a)(2) authorizes courts to impose condi-
tions it deems proper, but does not require such conditions. See Fed. R.
Civ. P. 41(a)(2). Notably, Appellants never asked the district court to
impose any terms or conditions on its dismissal. In light of Appellants'
failure to request that any specific conditions be placed upon the dis-
missal, we cannot say that the district court abused its discretion in
unconditionally dismissing the case.

                    8
III.

For the foregoing reasons, we affirm.

AFFIRMED

                    9
