            In the United States Court of Federal Claims
                                           No. 19-400L
                                     (Filed: January 24, 2020)
                                    NOT FOR PUBLICATION

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ELIZABETH G. BRADLEY et al.,          *
                                      *
                  Plaintiffs,         *
                                      *                RCFC 41(a)(2); Voluntary Dismissal;
v.                                    *                Prejudice; Rails-to-Trails
                                      *
THE UNITED STATES,                    *
                                      *
                  Defendant.          *
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                                              ORDER

        On January 7, 2020, plaintiffs in the above-captioned case filed a motion to voluntarily
dismiss certain claims without prejudice pursuant to Rule 41(a)(2) of the Rules of the United
States Court of Federal Claims (“RCFC”). 1 Defendant filed a response on January 14, 2020, in
which it indicates that it does not object to the dismissal of the claims but states that the dismissal
should be with prejudice:

       Because Plaintiffs’ motion comes after the claims book review process, after the
       United States was required to expend time reviewing title information, and after
       the United States asserted well-founded objections to these pending claims (which
       Plaintiffs have tacitly accepted), the United States respectfully submits that the
       claims’ dismissals should be with prejudice.

Resp. 2. Plaintiffs filed their reply on January 21, 2020. Relying on Klamath Irrigation District
v. United States, 116 Fed. Cl. 117 (2014), they contend that a dismissal without prejudice is
appropriate because the case is in the early stages of litigation, defendant has not expended
considerable time and effort in defending the claims, and they have acted with diligence and in
good faith in prosecuting the claims.

        Under RCFC 41(a)(2), “an action may be dismissed at the plaintiff’s request only by
court order, on terms that the court considers proper. . . . Unless the order states otherwise, a
dismissal under this paragraph (2) is without prejudice.” In Klamath, the court summarized the
factors typically considered in the United States Court of Federal Claims in determining whether

       1
           Plaintiffs’ caption contains a typographical error in the case number: “LAS” should be
“MMS.”
a dismissal should be without prejudice: “(i) the burden on the defendant if the case were to be
dismissed without prejudice; (ii) the progress of the litigation; and (iii) the diligence and good
faith of the plaintiff.” 116 Fed. Cl. at 119. The court explained:

       Under the first factor, the court may consider the impact on defendant if the
       dismissal is not sought until after the defendant has exerted significant time and
       effort. The second factor focuses on the stage of the litigation, recognizing that
       while “there is no hard and fast rule as to timing,” a later dismissal is more likely
       to occasion prejudice. Finally, the last of the three factors looks to whether there
       is any evidence of neglect, purposeful delay or other pursuit of tactical advantage
       by a plaintiff, thereby requiring the court to probe the reasons why the dismissal is
       being sought.

Id. (citations omitted) (quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2364 (3d. ed. 2008)).

         Although defendant’s articulation of its position is not tethered to any case law, it appears
that its objections relate to the first two factors identified in Klamath. As to the first factor,
defendant does not specify how a voluntary dismissal during the claims book process––i.e., fact
discovery––would constitute a burden. Indeed, defendant does not assert that the time it spent
reviewing the claims at issue is “significant.” As to the second factor, the case has not moved
beyond fact discovery; the parties have not yet proposed a schedule for briefing summary
judgment motions on liability, conducting expert discovery, or holding trial. In sum, the court
finds no support for defendant’s position that the identified claims should be dismissed with
prejudice.

       Accordingly, the court GRANTS plaintiffs’ motion and DISMISSES the following
claims WITHOUT PREJUDICE:

       •   H & R Vending (parcel number 11-11-06-03-15-052.000);

       •   Jeff L. and Kathryn J. Huffman (parcel number 11-11-06-03-15-053.000);

       •   MidAtlantic IRA LLC fbo Shelley Campbell IRA (parcel number 11-11-06-
           03-01-019.000 and 11-11-06-03-01-020.000); and

       •   Jerry and Betty S. Robinette (parcel number 11-11-06-03-15-039.000).

       IT IS SO ORDERED.

                                                       s/ Margaret M. Sweeney
                                                       MARGARET M. SWEENEY
                                                       Chief Judge




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