UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN H. HOBBS,
Plaintiff-Appellant,

v.
                                                                     No. 98-1831
THE KROGER COMPANY, d/b/a Kroger
Grocery Store,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-97-17-3-C)

Submitted: February 9, 1999

Decided: March 23, 1999

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David L. Epperly, Jr., EPPERLY, FOLLIS & SCHORK, P.C., Rich-
mond, Virginia, for Appellant. R. Craig Wood, Kerri Borchardt Tay-
lor, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,
Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

John H. Hobbs appeals from the dismissal with prejudice of his
civil action alleging injuries sustained when he slipped in a Kroger
grocery store. For the reasons that follow, we affirm.

The facts are undisputed. Hobbs' suit, alleging he sustained injuries
as a business invitee, was removed by Kroger to federal court in Feb-
ruary 1997. On April 7, 1998, Hobbs filed a motion to voluntarily dis-
miss the action without prejudice; three days later Kroger objected to
the motion arguing that any dismissal should be with prejudice. On
April 20, 1998, the morning that trial was scheduled to commence,
the district court denied Hobbs' motion to dismiss the action without
prejudice and granted Kroger's motion that the dismissal be with prej-
udice. Notwithstanding the fact that Hobbs had over a year to conduct
discovery, he had failed to obtain any expert testimony or evidence
to show that his alleged fall caused his subsequent injuries--a
requirement to prevail on his action. See Town of West Point v. Evans,
299 S.E.2d 349, 351 (Va. 1983). In fact, Hobbs' putative expert stated
at his deposition on March 12, 1998, that he was unprepared and
unable to state whether the surgery he had performed on Hobbs was
related to his fall in the Kroger store.*

At the hearing on the motion the district court denied Hobbs'
motion to dismiss without prejudice and granted Kroger's motion to
dismiss with prejudice. The court reached this decision after making
the following specific findings. First, the court found that Kroger had
_________________________________________________________________

*Dr. Harold S. Young wished to review the deposition of Dr. Thomas
J. Spicuzza another of Hobbs' listed expert witnesses, prior to being
deposed. However, Dr. Spicuzza also had not been deposed. Kroger
agreed to allow Hobbs to depose Young beyond the cutoff date for dis-
covery.

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expended considerable effort and expense in defending the suit and
preparing for the trial having incurred $12,000 in legal costs. Next,
the court did not find that the fourteen month period in which Hobbs
failed to acquire the necessary evidence to show causation as a per se
excessive delay; the court did find, however, a lack of diligence given
that Hobbs had no reasonable basis explaining why he had failed to
obtain evidence on a necessary element of his action in the face of an
imminent trial.

We review a district court's decision to grant a plaintiff's motion
to dismiss the complaint under Federal Rule of Civil Procedure
41(a)(2) for abuse of discretion. See Davis v. USX Corp., 819 F.2d
1270, 1273 (4th Cir. 1987). As a general rule, a plaintiff's motion for
voluntary dismissal without prejudice under Rule 41(a)(2) should not
be denied absent plain legal prejudice to the defendant. See Ohlander
v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997), cert. denied, 118
S. Ct. 702 (1998); Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th
Cir. 1986). A district court, however, may dismiss an action under
Rule 41(a)(2) with prejudice. See Choice Hotels Int'l Inc., 11 F.3d
469, 471 (4th Cir. 1993). Factors a district court should consider in
ruling on a Rule 41(a)(2) motion are: (1) the opposing party's effort
and expense in preparing for trial; (2) excessive delay or lack of dili-
gence on the part of the movant; (3) insufficient explanation of the
need for a dismissal; and (4) the present stage of the litigation, i.e.,
whether a dispositive motion is pending. See Phillips USA, Inc. v. All-
flex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996); Paulucci v. City of
Duluth, 826 F.2d 780, 783 (8th Cir. 1987). These factors are not
exclusive, however, and any other relevant factors should be consid-
ered by the district court depending on the circumstances of the case.
See Ohlander, 114 F.3d at 1537.

We do not find that the district court abused its discretion in deny-
ing Hobbs' motion to dismiss without prejudice. See Davis, 819 F.2d
at 1273. First, the court adequately articulated its reasons for granting
the motion to dismiss with prejudice. Second, Hobbs had prior notice
that the court would be considering dismissal with prejudice, as
argued in Kroger's response to the Rule 41(a)(2) dismissal. Third,
Hobbs was heard by the district court on the issue of whether the dis-
missal should be with or without prejudice. And finally, as noted by
the district court, Hobbs could not have prevailed at trial without

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obtaining expert testimony and thus proceeding to trial was futile. See
Andes, 788 F.2d at 1037 (vacating dismissal with prejudice on appeal
because district court failed to articulate its basis for the dismissal,
thereby denying effective appellate review; holding that the dismissal
deprived the plaintiff, without notice, of proceeding to adjudication of
issues on the merits). Accordingly, we find that the district court
properly exercised its authority under Rule 41(a)(2) to dismiss the
action with prejudice, see Choice Hotels Int'l Inc., 11 F.3d at 471, and
thus, we affirm the order of district court.

We grant Kroger's unopposed motion to submit the case on briefs
without oral argument as the parties factual and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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