Ricky Tillman, Jr. v. BNSF Railway Company; Donald Handy

United States Court of Appeals
For the Eighth Circuit
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No. 21-2931
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Ricky Tillman, Jr.
lllllllllllllllllllllPlaintiff - Appellee
v.
BNSF Railway Company; Donald Handy
lllllllllllllllllllllDefendants - Appellants
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: January 12, 2022
Filed: May 12, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
On August 14, 2020, Titusan Townsend and Ricky Tillman, Sr. died when the
car Townsend was driving collided with a BNSF Railway Company train in Hayti,
Missouri. Ricky Tillman, Jr. filed a wrongful death suit in Missouri state court
against BNSF, train operator Donald Handy, and Townsend. BNSF removed to
federal court based on diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1441(b).
Tillman filed a motion to remand, and discovery commenced that included separate

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counsel for defendant Townsend’s guardian ad litem and for his family. After the
guardian consented to federal jurisdiction, the district court denied Tillman’s motion
to remand on March 5, 2021.
On April 7, Townsend’s widow filed a wrongful death suit against the City of
Hayti and Donald Handy in state court. On April 15, Tillman and his sister filed a
wrongful death suit against the City in state court, and a motion to consolidate that
action with Townsend’s. On April 27, Tillman moved to voluntarily dismiss this case
without prejudice, citing his desire to pursue these claims in state court to eliminate
potential duplication of evidence and inconsistent verdicts. Because BNSF had
answered the Complaint, dismissal required a “court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). BNSF opposed the motion, arguing
improper forum shopping and prejudice to the defendants.
The state court granted Tillman’s motion to consolidate on June 16, 2021. The
district court1 granted the motion for voluntary dismissal without prejudice on July
21. Noting the complexity of parallel lawsuits and the risk of inconsistent verdicts,
the court concluded that a single action in state court “will best allow for efficient use
of judicial resources that this Court cannot ignore.” BNSF appeals, arguing (i) the
court erred when it “failed to address [Tillman’s] purpose in seeking to voluntarily
dismiss,” Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1214 (8th Cir. 2011);
and (ii) abused its discretion in dismissing without prejudice because Tillman
requested voluntary dismissal “merely to seek a more favorable forum,” and “the
presence of improper forum shopping . . . is fatal to a voluntary dismissal without
prejudice.” BNSF urges us to remand with directions to deny the voluntary motion
to dismiss. Finding no abuse of discretion, we affirm.
1The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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I. The Forum Shopping Issue
A. When ruling on a Rule 41(a)(2) motion, district courts must consider
“whether the party has presented a proper explanation for its desire to dismiss;
whether a dismissal would result in a waste of judicial time and effort; and whether
a dismissal will prejudice the defendants.” Donner v. Alcoa, Inc., 709 F.3d 694, 697
(8th Cir. 2013), quoting Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941,
950 (8th Cir. 1999), cert. denied, 528 U.S. 1117 (2000). We will refer to these as “the
Hamm factors.” In Thatcher, a class action plaintiff sought voluntary dismissal
without prejudice so he could file an amended complaint in state court that would
avoid removal under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).
Although other Hamm factors weighed in favor of dismissal, we concluded the
district court abused its discretion in granting voluntary dismissal “without first
addressing whether the motion was an improper forum-shopping measure.” 659 F.3d
at 1215. Here, BNSF argues the district court failed to consider Tillman’s forum
shopping motive in granting his motion to dismiss without prejudice.
We agree a district court is obligated to “address the plaintiff’s purported
reason for the voluntary motion to dismiss” and determine whether the stated purpose
is proper. Blaes v. Johnson & Johnson, 858 F.3d 508, 514-15 (8th Cir. 2017).
Failure to explain why voluntary dismissal is being sought and to advise what claims
may be filed in a new action often justifies denying a motion to dismiss without
prejudice. See Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987); Beavers
v. Bretherick, 227 F. App’x 518, 522 (8th Cir. 2007); cf. Graham v. Mentor
Worldwide LLC, 998 F.3d 800, 805 (8th Cir. 2021). However, if the plaintiff states
a proper justification and the court concludes that the relevant Rule 41(a)(2) factors
support voluntary dismissal without prejudice, there is no reversible error if the
district court grants the motion without explicitly addressing the “forum shopping”
issue. See Blaes, 858 F.3d at 515. In Blaes, the plaintiff explained in his reply brief
that he was seeking to refile his products liability action in state court and consolidate
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it with multiple pending actions. Id. at 512. The district court concluded the “reason
was proper, would not waste judicial time and effort, and would not prejudice
defendants.” Id. at 514. We affirmed, observing the district court “implicitly rejected
defendants’ argument that Blaes was forum shopping.” Id. at 515.
Here, Tillman’s Memorandum supporting his motion for voluntary dismissal
without prejudice set forth the proper standard; explained that two actions arising out
of the same crash were pending in state court and were not removable; and argued
that judicial economy and the interests of justice would be served by dismissing the
case without prejudice so it can be refiled and consolidated with the state court cases.
In granting the motion, the district court agreed, rejecting BNSF’s contention that
Tillman manufactured the situation by not adding the City of Hayti as a federal
defendant. The court explained, “the other related case involving defendant
Townsend’s widow . . . must still be litigated separately in state court,” and “Tillman
also brings a claim against the deceased Townsend.” In response to BNSF’s
argument based on Thatcher -- “that plaintiff should not be permitted to forum-shop
even if the factors otherwise weigh in favor of dismissal” -- the court stated that
Thatcher did not involve a situation “in which a parallel and unremovable state-court
case presents the risk of inconsistent verdicts.”
BNSF argues this statement demonstrates the court chose not to consider forum
shopping. What nonsense. The court was distinguishing Thatcher, not foregoing
analysis of the forum shopping issue. The plaintiff in Thatcher offered no
justification for dismissal without prejudice other than a desire to escape federal
jurisdiction. Tillman’s reasons for voluntary dismissal -- to avoid multiplicitous
litigation and the risk of inconsistent verdicts -- like the trial efficiency reason
belatedly put forth in Blaes, squarely addressed the question whether dismissal
“would result in a waste of judicial time and effort.” Hamm, 187 F.3d at 950.
BNSF’s failure-to-consider argument is without merit.
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B. BNSF argues that Thatcher requires a district court ruling on a Rule
41(a)(2) motion to first consider whether the plaintiff was improperly attempting to
escape an adverse decision or seeking a more favorable forum. Only if the court finds
that the plaintiff has no “forum shopping” motive may it consider whether the other
Hamm factors warrant exercise of its discretion to grant voluntary dismissal. We
reject this contention. An attorney who files a voluntary dismissal motion for the
purpose of refiling the lawsuit elsewhere of course believes the alternative venue
would be “more favorable.” We decline to adopt a theory that would effectively
preclude every motion to dismiss without prejudice.
Without question, we have “repeatedly noted the importance of inquiring into
whether a party has a proper explanation for its desire to dismiss and whether a
party’s motive in requesting a voluntary dismissal is merely to seek a more favorable
forum.” Graham, 998 F.3d at 805 (citations omitted). BNSF bases its argument on
the term “forum shopping,” using it as a pejorative. In this case, however, the
intimation is deceptive at best. Tillman began the suit in state court rather than
federal court, exercising a plaintiff’s time-honored right to choose when more than
one forum has jurisdiction over his claims. BNSF then removed the action to federal
court, exercising a limited statutory right of “forum shopping” first granted in § 12
of the Judiciary Act of 1789. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 286 (1938). Tillman now seeks to return the case to his original chosen
forum in a form that will avoid removal. So who is the forum shopper? This issue
should be decided on the merits, not by name-calling.
Using a Rule 41(a)(2) motion to dismiss without prejudice to avoid federal
jurisdiction is a recurring tactic. As usual, context matters. When the federal case
has progressed to the point where a decision adverse to a plaintiff is imminent, such
as the pending summary judgment motion in Hamm, “a party is not permitted to
dismiss merely to escape an adverse decision.” 187 F.3d at 950 (citations omitted);
accord Graham, 998 F.3d at 805 (federal preemption motion pending). Likewise, it
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is not a proper purpose when the plaintiff seeks dismissal without prejudice to add a
non-diverse defendant against whom he has no legally viable claim. See Donner, 709
F.3d at 697. Another specific context is Thatcher, where we remanded because the
plaintiff’s intent to avoid federal jurisdiction “set forth no adequate reason why it
would benefit the class to abandon [the] additional claims” needed to avoid CAFA
removal. 659 F.3d at 1214.2
Our settled rule is that a plaintiff seeking voluntary dismissal without prejudice
must give a reason other than “merely to seek a more favorable forum.” Graham, 998
F.3d at 805, quoting Donner, 709 F.3d at 699, and citing Blaes, 858 F.3d at 514-15
and 518-19 (Gruender, J., dissenting), and Hamm, 187 F.3d at 951. Here, as in Blaes,
Tillman put forth reasons for voluntary dismissal -- to avoid multiplicitous litigation
and the risk of inconsistent verdicts -- consistent with an important Hamm factor --
whether dismissal “would result in a waste of judicial time and effort.” 187 F.3d at
950. The district court properly reached the merits of that issue.
II. Weighing the Hamm Factors
BNSF argues the district court abused its discretion because it (1) granted the
motion despite rejecting Tillman’s proffered reason; (2) ignored prejudice to
defendants; and (3) gave significant weight to an improper factor, the risk of
inconsistent verdicts. We disagree.
2In Thatcher, the class action plaintiff based his remand motion on Eighth
Circuit CAFA law that was overruled in Standard Fire Insurance Co. v. Knowles, 568
U.S. 588, 595 (2013), where the Supreme Court observed that federal courts may
allow plaintiffs to avoid federal jurisdiction by stipulation only if the stipulation is
“binding on all [class member] plaintiffs.” That resolved our concern in Thatcher.
The district court decision on remand in Thatcher was not appealed, and we do not
agree with the broader reasoning in that opinion on which BNSF heavily relies.
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(1) The district court did not reject Tillman’s proffered reason -- to consolidate
claims against all defendants in a single suit. BNSF argued that Tillman’s professed
concern about parallel litigation was illusory because he could add the City of Hayti
as a defendant in his federal suit, rather a separate suit in state court. The district
court agreed in part, noting Tillman “might easily add the City of Hayti to this matter
and represent his sister’s interests as a beneficiary.” But the separate unremovable
suit filed by Townsend’s widow would remain in state court, maintaining the
“complexity of the separate suits” and “very real risk of inconsistent judgments.”
BNSF argued Tillman’s claims against the City are of “questionable merit” --
they are barred by sovereign immunity or procedurally-barred. But Tillman’s reply
provided argument and authorities supporting the validity of his claims against the
City. The district court concluded this reason for voluntary dismissal does not lack
a “reasonable basis in law.” Donner, 709 F.3d at 697. BNSF argued that procedural
improprieties in the appointment of Townsend’s original guardian ad litem and the
timing of Tillman’s separate state court suit against the City of Hayti are further
evidence of pretext. The district court did not abuse its discretion in concluding these
are insufficient reasons to find Tillman’s justification pretextual.
(2) Regarding the prejudice factor, “[t]he purpose of Rule 41(a)(2) is primarily
to prevent voluntary dismissals which unfairly affect the other side. Courts generally
will grant dismissals where the only prejudice the defendant will suffer is that
resulting from a subsequent lawsuit.” Paulucci, 826 F.2d at 782. In Kern v. TXO
Production Corp., Judge Richard Arnold explained, “[b]y ‘prejudice’ in this context
is meant something other than the necessity that defendant might face of defending
another action.” 738 F.2d 968, 970 (8th Cir. 1984). “[O]ne court is as good as
another.” Id. at 973, quoting Judge Learned Hand’s concurring opinion in Young v.
Southern Pacific Co., 25 F.2d 630, 632 (2d Cir. 1928).
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BNSF argues the district court abused its discretion “by wholly failing to
consider the potential prejudice to the defendants” -- that the plaintiff may not be
bound by his stated abandonment of punitive damages, and defendants may lose valid
defenses and face “a consolidated state court trial rife with undue sympathy for
multiple plaintiffs.” These arguments were extensively briefed to the district court.
The court did not abuse its discretion in concluding that the prejudices defendants
may suffer are those “resulting from a subsequent lawsuit.” An extensive discourse
was not required. See Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 728 (8th
Cir. 2014); Kern, 738 F.2d at 970.
(3) BNSF’s contention that giving weight to the risk of inconsistent verdicts
is an improper factor is plainly without merit. Nor was this the district court’s sole
justification for granting the motion. Rather, the court assessed the judicial economy
concerns created by parallel lawsuits arising out of a single accident and concluded
that dismissal “will best allow for efficient use of judicial resources that this Court
cannot ignore.”
Consideration of the Hamm factors is left to the “sound discretion of the
district courts. . . . [T]he court has a range of choice, and . . . its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of
law.” Kern, 738 F.2d at 970. Here, even if denying Tillman’s motion would not have
abused the district court’s discretion, on these unique procedural facts it was not an
abuse of discretion to grant it. “The very concept of discretion presupposes a zone
of choice within which the trial courts may go either way.” Id. at 971.
The Order of the district court dated July 21, 2021 is affirmed.
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