                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
KATRINA QUEEN, KITT HASTON, and           )
WILLIAM QUEEN,                            )
                                          )
            Plaintiffs,                   )
                                          )
      v.                                  )                   Civil Action No. 10-2017 (PLF)
                                          )
JANET SCHMIDT, MARK CERA, and             )
BONNIE MILLER,                            )
                                          )
            Defendants.                   )
_________________________________________ )


                                   MEMORANDUM OPINION

                This matter is before the Court on plaintiffs Katrina Queen and William Queen’s

motion to dismiss this case under the doctrine of abstention. See Dkt. 85 (Apr. 8, 2016).

Defendant Janet Schmidt filed an untimely opposition to the motion, see Dkt. 93 (Apr. 28, 2016),

which the Court nevertheless has considered, and plaintiffs filed a reply to Schmidt’s opposition.

See Dkt. 97 (May 6, 2016). The Court will grant the motion. 1

               Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure allows a plaintiff to

voluntarily dismiss his or her own action “without a court order by filing . . . a notice of

dismissal before the opposing party serves either an answer or a motion for summary judgment.”

Otherwise, “an action may be dismissed at the plaintiff's request only by court order, on terms



       1
               The papers considered in connection with the issues pending include Defendant
Bonnie Miller’s Motion to Dismiss [Dkt. 18]; Defendant Mark Cera’s Motion to Dismiss or in
the Alternative for Summary Judgment [Dkt. 19]; Order [Dkt. 57]; Plaintiffs’ Motion to Dismiss
(“Mot.”) [Dkt. 85]; Defendant Janet Schmidt’s Opposition (“Opp.”) [Dkt. 93]; and Plaintiffs’
Reply to Defendant Janet Schmidt’s Opposition [Dkt. 97].
that the court considers proper.” FED. R. CIV. P. 41(a)(2). Here, a court order is required in

order to dismiss the case because defendants Bonnie Miller and Mark Cera each filed motions

seeking “dismiss[al] with prejudice, or in the alternative, for summary judgment.” Miller Motion

to Dismiss at 1, Dkt. 18 (Dec. 21, 2010); see also Cera Motion to Dismiss or in the Alternative

for Summary Judgement at 1, Dkt. 19 (Dec. 21, 2010). 2

               By way of background, Judge Ricardo M. Urbina terminated Miller and Cera’s

motions when he remanded the case to the Superior Court of the District of Columbia in

September of 2011. Queen v. Schmidt, No. 10-2017 RMU, 2011 WL 4101117, at *2 (D.D.C.

Sept. 14, 2011). Following reassignment of the case to the undersigned, Dkt. 54 (June 12, 2012),

the Court vacated the remand and, inter alia, granted Miller and Cera’s motions to dismiss with

prejudice plaintiffs’ claim that Miller and Cera breached a fiduciary duty to plaintiffs. See

Queen v. Schmidt, No. CV 10-2017 (PLF), 2015 WL 5175712, at *12 (D.D.C. Sept. 3, 2015);

see also Order, Dkt. 57 at 1 (“[P]laintiffs’ claim against defendants Cera and Miller for breach of

fiduciary duty is DISMISSED, and [] plaintiffs’ claim against Cera and Miller for civil

conspiracy is DISMISSED WITHOUT PREJUDICE.”). The Court dismissed as futile plaintiffs’

fiduciary duty claim under Rule 12(b)(6) for failure to state a claim upon which relief could be

granted because there could be no legal or factual basis to support the assertion that Miller or

Cera owed plaintiff a fiduciary duty. See Queen v. Schmidt, 2015 WL 5175712, at *12. Thus,

the Court passed on the merits of plaintiffs’ fiduciary duty claim by dismissing it with prejudice.



       2
                  Cera’s motion argued that the Court should dismiss plaintiffs’ complaint because
it failed to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure and that the
Court should “convert” that motion to dismiss into a motion for summary judgment because
“[p]laintiffs have not even asserted any facts against [d]efendants upon which a genuine issue of
material fact can exists [sic].” Dkt. 19 at 7-8; see also Dkt. 18 at 1-2 (Miller adopting this
argument).


                                                 2
An opportunity to replead would be futile. See 5 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

MARY KAY KANE, FED. PRAC. & PROC. CIVIL § 1281 (3d ed. 2012) (“If the district court grants a

motion to [] dismiss . . . , ordinarily it will do so without prejudice and permit the filing of an

amended pleading, except when there is reason to believe that the amendment will be to no

avail.”); cf. Osborn v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015) (explaining same). For

these reasons, the filing by Miller and Cera of motions for summary judgment preclude

voluntary dismissal under Rule 41(a)(1)(A)(i) and plaintiffs’ current motion therefore is properly

analyzed under Rule 41(a)(2).

               Although a court order is required under Rule 41(a)(2) to effectuate a dismissal, a

plaintiff seeking a voluntary dismissal in good faith under that Rule generally prevails “unless

the defendant would suffer prejudice other than the prospect of a second lawsuit or some tactical

advantage.” Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986). “The purpose of the

provision authorizing the Court to dismiss a case ‘on terms that the court considers proper’ is to

protect a defendant from any prejudice or inconvenience that may result from a plaintiff's

premature dismissal.” Mittakarin v. InfoTran Sys., Inc., 279 F.R.D. 38, 41 (D.D.C. 2012)

(quoting FED. R. CIV. P. 41(a)(2), and citing GAF Corp. v. Transamerica Ins. Co., 665 F.2d 364,

369 (D.C. Cir. 1981)). In assessing “prejudice” to defendants, a court must consider: “(1) the

defendants’ effort and expense for preparation of trial; (2) excessive delay or lack of diligence on

the plaintiffs’ part in prosecuting the action; (3) the adequacy of plaintiffs’ explanation of the

need for dismissal; and (4) the stage of the litigation at the time the motion to dismiss is made,

specifically whether a motion for summary judgment is pending.” In re Vitamins Antitrust

Litig., 198 F.R.D. 296, 304 (D.D.C. 2000).




                                                   3
                Here, plaintiffs argue that dismissal of their complaint is appropriate because they

are litigating identical claims in the District of Columbia Superior Court, which “is in a position

where it can act on the substantive issues of the case” and “[t]he Federal Court has not been able

to act on the substantive issues of the case since it is still in the process of determining the

validity of personal service.” Mot. at 8 They also note that “litigating in the federal forum

would deplete the assets of the Trust” and that “[t]he cost of litigating in the federal forum is

higher than the costs of litigating in the state forum.” Id. In support of dismissal, plaintiffs also

argue that because the case “present[s] difficult questions of state law bearing on policy

problems of substantial public import whose importance transcends the result in the case then at

bar,” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976), this

Court should abstain from exercising jurisdiction in this case. Mot. at 5-6.

                Schmidt responds by alleging that plaintiffs acted in bad faith by failing to include

a copy of the Superior Court complaint, Opp. at 1-2, and by forum shopping. Id. at 4-5. She also

contends that abstention is inappropriate because (1) the Superior Court complaint “involves an

entirely different cast of parties than the instant case” and (2) “the litigation in Federal court is

well underway.” Id. at 3-6. Finally, Schmidt asserts that plaintiffs’ invocation of Colorado

River abstention is an attempt to avoid her removal of the case to federal court. Id. at 6-7.

                The Court is not persuaded that plaintiffs are attempting to dismiss this action in

bad faith. Schmidt admits that the parallel proceeding in the Superior Court is currently in

mediation, Opp. at 5, and does not challenge plaintiffs’ assertion that “[t]he cost of litigating in

the federal forum is higher.” Mot. at 8. The Court therefore credits plaintiffs’ good faith desire

to litigate in the Superior Court and proceeds to assess whether dismissal will prejudice the

defendants.



                                                   4
                None of the four factors set forth above suggests that dismissal will prejudice

defendants. The first and fourth factors are not relevant here because this case is in the early

stages of litigation, as evidenced by the fact that the Court is currently still considering

jurisdictional issues such as service of process following the Court’s opinion on the motions to

dismiss. See Queen v. Schmidt, 2015 WL 5175712. As in Mittakarin v. InfoTran Sys., Inc., 279

F.R.D. at 41, “[n]o discovery has been completed, and defendants have not likely made any

effort or expense in preparing for trial. . . . [T]he resources defendants have expended thus far do

not amount to legal prejudice.” The second factor cuts in plaintiffs’ favor because they have

been diligent in seeking to advance this case by attempting to serve process upon Schmidt. See,

e.g., Affidavit of Service by Special Process Server, Dkt. 73 (Dec. 30, 2015). Finally, plaintiffs’

provided an adequate explanation for seeking dismissal of the case: “[t]he cost of litigating in

the federal forum is higher” than it would be in the state forum. Mot. at 8. 3 Defendants do not

challenge that rationale and do not suggest that it is disingenuous. Cf. In re Vitamins Antitrust

Litig., 198 F.R.D. at 305 (plaintiff did not show adequate need for dismissal where the motion to

dismiss was a veiled attempt to avoid procedural default (citing Teck Gen. P’ship v. Crown

Central Petroleum Corp., 28 F. Supp. 2d 989 (E.D. Va. 1998)). 4 The Court therefore concludes

that voluntary dismissal is appropriate under Rule 41(a)(2).


        3
                 The Court does not consider the parties’ legal arguments concerning Colorado
River abstention because plaintiffs have adequately demonstrated a “need for dismissal,” In re
Vitamins Antitrust Litig., 198 F.R.D. at 304, based upon their claim that the instant federal
litigation is depleting the limited amount of assets in the trust that is at issue in this case. Mot. at
8.
        4
                Schmidt does not advance the argument that plaintiffs’ motion to dismiss is an
attempt to avoid an adverse ruling from this Court concerning plaintiffs’ service of process. In
any event, such an argument lacks merit because the effect on plaintiffs is the same whether the
Court orders voluntary dismissal under Rule 41(a)(2) or dismisses for lack of service under Rule
12(b)(5): both result in dismissals without prejudice. Compare FED. R. CIV. P. 41(a)(2) (“Unless
the order states otherwise, a dismissal under this paragraph is without prejudice.”), with

                                                   5
                 For these reasons, the Court will issue an Order dismissing plaintiffs’ complaint

this same day.

                 SO ORDERED.



                                                      /s/____________________________
                                                      PAUL L. FRIEDMAN
                                                      United States District Judge
DATE: May 12, 2016




Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997) (“[T]he
insufficiency of service of process would have warranted the court’s dismissing counts 1 and 2
without prejudice.”).


                                                  6
