     Case: 12-40137       Document: 00512077291         Page: 1     Date Filed: 12/07/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 7, 2012

                                       No. 12-40137                        Lyle W. Cayce
                                                                                Clerk

DOUG HARRIS; DIANA HARRIS,

                                                  Plaintiffs-Appellees
v.

DEVON ENERGY PRODUCTION COMPANY, L.P.,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CV-708


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiffs Doug and Diana Harris sued Devon Energy Production
Company, L.P., alleging that Devon’s oil and gas drilling activities near their
property contaminated their well water. The Harrises subsequently moved to
voluntarily dismiss the suit pursuant to FED. R. CIV. P. 41(a)(2). The district
court granted the motion and dismissed the suit without prejudice. Devon
appeals the district court’s judgment, contending that a dismissal without
prejudice was improper.          We conclude that the district court abused its

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-40137     Document: 00512077291        Page: 2    Date Filed: 12/07/2012



                                   No. 12-40137

discretion and that the judgment should be modified to be a dismissal with
prejudice. We therefore AFFIRM the judgment as MODIFIED.
      Rule 41(a)(2) of the Federal Rules of Civil Procedure provides, in relevant
part, that after a defendant files an answer or a motion for summary judgment
“an action may be dismissed at the plaintiff’s request only by court order, on
terms that the court considers proper.” FED. R. CIV. P. 41(a)(2); see In re FEMA
Trailer Formaldahyde Products Liab. Litig., 628 F.3d 157, 162 (5th Cir. 2010).
Voluntary dismissals “should be freely granted,” but a plaintiff’s request will not
be allowed if “the non-moving party will suffer some plain legal prejudice.”
Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002). Plain legal
prejudice may occur when the plaintiff moves to dismiss a suit at a late stage of
the proceedings or seeks to avoid an imminent adverse ruling in the case, or
where a subsequent refiling of the suit would deprive the defendant of a
limitations defense. In re FEMA Trailer, 628 F.3d at 162. The “primary
purpose” of this rule is to avoid “voluntary dismissals which unfairly affect the
other side.” Elbaor, 279 F.3d at 317 (internal quotation marks and citation
omitted).
      For example, if a plaintiff “fails to seek dismissal until a late stage of trial,
after the defendant has exerted significant time and effort, then a court may, in
its discretion, refuse to grant a voluntary dismissal.” Davis v. Huskipower
Outdoor Equip. Corp., 936 F.2d 193, 199 (5th Cir. 1991). On the other hand,
plain legal prejudice does not include the mere prospect of a second suit or the
mere incursion of expense. Elbaor, 279 F.3d at 317 & n.3. If the district court
determines that an unconditional dismissal will cause the defendant plain legal
prejudice, it may either deny the motion to dismiss or impose conditions that will
cure the prejudice. Id. at 317–18. The latter course may include dismissing the
suit with prejudice. See id. at 319. We review the district court’s determination
on the issue of prejudice for an abuse of discretion. Id. at 318.

                                          2
    Case: 12-40137    Document: 00512077291     Page: 3   Date Filed: 12/07/2012



                                 No. 12-40137

      Devon argues that the district court’s unconditional dismissal of the suit
caused it plain legal prejudice because it prevented Devon from obtaining a
ruling on its motion for summary judgment, and that the district court failed to
address its argument that the Harrises sought dismissal in order to avoid an
adverse result. Based on our review of the circumstances, we agree.
      The Harrises alleged in their suit that contaminants present in their well
water were connected to Devon’s activity near their property. The allegations
were based on the presence of a grey sediment in their ground water and tests
that allegedly showed elevated levels of various metals that the Harrises argued
are commonly used in drilling mud. Devon moved for summary judgment,
contending that its expert evidence refuted the allegation of any causal link
between the contamination and its activity, but the district court denied the
motion as premature because discovery was ongoing. The Harrises did not,
however, engage in further discovery after the court’s ruling.
      Devon subsequently re-filed its summary judgment motion, arguing that
the Harrises’ well water was not contaminated and that its operations could not
be a cause of any alleged contamination. The record showed that before the
Harrises filed suit the Texas Railroad Commission had performed an
investigation and found no contamination in the Harrises’ water. Devon’s
evidence also included a down hole video of one of the wells showing that the
well casing had deteriorated, which allowed sediment from the aquifer to flow
into the well. Devon also had expert evidence that its activity could not have
caused contamination of the well. Just before their responsive pleading was due,
the Harrises sought dismissal of the suit because their own subsequent testing
of the ground water showed that the alleged water contamination had
apparently dissipated.    When ordered to file a response to the summary
judgment motion, the Harrises conceded that they could not prove that Devon
was the cause of their alleged toxic water. Despite this concession, the Harrises

                                       3
    Case: 12-40137     Document: 00512077291      Page: 4    Date Filed: 12/07/2012



                                  No. 12-40137

assert that the dismissal was not sought to avoid an imminent adverse ruling
and that Devon suffered no plain legal prejudice under the totality of the
circumstances. We are not convinced given the state of the record.
      The Harrises’ theory is that their suit was justified at its inception because
an August 2010 lab report showed elevated levels of heavy metal, but that
testing in June 2011 showed toxicity levels that were no longer dangerous to
humans. They suggest that this may be explained because the flowing nature
of the aquifer allowed the toxins to dissipate. These purportedly changing
circumstances led the Harrises to dismiss the suit rather than pursue an
“economically unfeasible situation in court.” The Harrises’ position is not
supported by the record. The August 2010 lab report is not accompanied by
explanatory affidavits or expert testimony, and there is no evidence supporting
the Harrises’ claims that the report shows dangerous levels of contaminants. As
for changing circumstances, the Harrises cite no evidence, other than statements
by their counsel, about the ebb and flow of contaminants generally, or that the
alleged toxicity levels here dissipated naturally but might return. The Harrises
further claim that the June 2011 report showed the presence of substances
different from those reported in August 2010, but again there is no evidence in
the record to explain the bald lab report.
      In light of the Harrises’ concession that they could not prove Devon’s
activity caused contamination, and the absence of any evidence explaining the
bare lab report upon which the suit was initially based, we can only conclude
that the Harrises’ dismissal of the suit was intended to avoid an imminent
adverse result on summary judgment. This is sufficient to cause plain legal
prejudice. See In re FEMA Trailer, 628 F.3d at 162; see also League of United
Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 843 (5th Cir.
1993) (en banc). We therefore modify the district court’s judgment to dismiss the
suit with prejudice. As modified, the judgment is affirmed.

                                         4
    Case: 12-40137      Document: 00512077291   Page: 5   Date Filed: 12/07/2012



                                 No. 12-40137

      AFFIRMED as MODIFIED.




DENNIS, Circuit Judge, dissenting:
      I respectfully dissent, being of the view that the district judge did not
abuse his discretion.




                                       5
