      In the United States Court of Federal Claims
                                    No. 15-584L
                              (Filed January 9, 2017)
                             NOT FOR PUBLICATION

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                                  *
                                  *
TURPEINEN BROTHERS INC.,          *
et al.,                           *
                                  *
                 Plaintiffs,      *
                                  *
        v.                        *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant.       *
                                  *
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                                      ORDER

       Following the filing of the Third Amended Complaint, plaintiffs have moved
under Rule 41(a)(2) of the Rules of the United States Court of Federal Claims
(RCFC), to voluntarily dismiss from this rails-to-trails takings case, without
prejudice, the claims of five plaintiffs. The motion notes that each of these claims
are defective, either because the railroad obtained a fee simple interest in the
adjacent land, the property owners’ land is not adjacent to the railroad corridor, or
the property allegedly taken was obtained after the date of the taking. Pls.’ Mot. at
1. The government consents to the dismissal of the claims, but argues this should
be with prejudice, applying the three factors identified in Deuterium Corp. v. United
States, 21 Cl. Ct. 132, 134 (1990). Def.’s Resp. & Opp’n at 2–5. In reply, plaintiffs
argue that a dismissal without prejudice is warranted under Deuterium Corp., and
that this would preserve the ability of the dismissed claimants to obtain a second
opinion as to the viability of their claims. Pls.’ Reply at 2–5.

       Taking into consideration “the burden on defendant of dismissal without
prejudice, the progress of the litigation, and the diligence and good faith of the
plaintiff[s],” Deuterium Corp., 21 Cl. Ct. at 134; see also Freeman v. United States,
98 Fed. Cl. 360, 368 (2011), the Court concludes that a dismissal of the claims
without prejudice is appropriate. The Third Amended Complaint was filed less
than one year from the initiation of this lawsuit, and in that time the case changed
from a putative class action with six named parties asserting claims concerning four
properties, see Compl. ¶¶ 6–9, 16–22, to an action brought by twenty-eight property
owners concerning fifteen different properties, see Third Am. Compl. ¶¶ 6–20.
Along the way, counsel for the parties apparently determined that one of the
original plaintiffs, plus four others who joined in the Second Amended Complaint,
possessed claims believed to be defective. The motion of plaintiffs to voluntarily
dismiss the claims of these five plaintiffs would expedite and simplify the litigation
by narrowing its focus to the twelve other claims.

        The government argues that, unless the dismissal is with prejudice, it is
burdened with “the uncertainty of future litigation” over the dismissed claims.
Def.’s Resp. & Opp’n at 3–4. Defendant contends that it expended time and
resources to discover the invalidity of these claims, and that it is being deprived of
the ability to obtain summary judgment concerning them. Id. at 4–5. But despite
having purportedly taken the time to investigate the merits of these claims, the
government neglected to provide the Court with the specific reason or reasons why
each is believed to be invalid. See id. at 1–5. Nor has defendant identified any
reason why it would be more burdensome to use this information to seek the
dismissal of any subsequent lawsuit filed on behalf of the dismissed claimants than
to move for summary judgment in this proceeding. Moreover, the Court notes that
it is not clear that class action tolling, under Bright v. United States, 603 F.3d 1273
(Fed. Cir. 2010), would apply to the claims of named parties in a class action. Thus,
the six years that have elapsed since the date of the alleged taking, see Third Am.
Compl. ¶ 24, or from the issuance of the Notice of Interim Trail Use, id. ¶ 21, see
Barclay v. United States, 443 F.3d 1368, 1378 (Fed. Cir. 2006), should dramatically
reduce the prospect of any future litigation over these claims.

      Plaintiffs have moved expeditiously to dismiss the suspect claims, and
defendant has failed to persuade the Court that dismissal without prejudice would
be burdensome. Litigating their merits at this juncture would pose an unnecessary
burden --- as the government, in choosing not to match the various reasons for
dismissal with each claim, seems to concede by its actions. Accordingly, plaintiffs’
motion to dismiss, under RCFC 41(a)(2), the claims of Turpeinen Brothers, Inc.,
Jason Quinn, Wayne Solberg, and Lee and Shirley Jackson, is GRANTED without
prejudice. Henceforth, this case will be referred to as Robert Wagner, et al. v.
United States.

IT IS SO ORDERED.


                                        s/ Victor J. Wolski
                                        VICTOR J. WOLSKI
                                        Judge

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