Healing with Hyperbarics of North Dakota, PLLC et al v. Luistro et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Healing with Hyperbarics of North Dakota, )
PLLC, 	)
)
Plaintiff, 	) 	ORDER
)
vs. 	)
) 	Case No. 3:25-cv-62
Allan Luistro, M.D., et al., 	)
)
Defendants. 	)
Plaintiff Healing with Hyperbarics of North Dakota, PLLC, filed a motion to dismiss
without prejudice under Federal Rule of Civil Procedure 41(a)(2). Doc. 25. Defendants Dr. Allan
Luistro and The Swanson Foundation oppose the motion (Doc. 29) and argue the dismissal should
be with prejudice.
Rule 41(a)(2) authorizes voluntary dismissals “on terms that the court considers proper”
after a defendant has served its answer. Fed. R. Civ. P. 41(a)(2). “[A] dismissal pursuant to Rule
41(a)(2) is not one of right but is rather a matter for the discretion of the trial court.” Great Rivers
Coop. of SE Iowa v. Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999). Courts “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.”
Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 727 (8th Cir. 2014).
Some time ago, the Eighth Circuit Court of Appeals explained that the purpose of Rule
41(a)(2) is to primarily prevent voluntary dismissals that unfairly affect the other side. See Palucci
v. City of Duluth, 826 F.2d 780 (8th Cir. 1987). In Paulucci, the Eighth Circuit noted that “[c]ourts
generally will grant dismissals where the only prejudice the defendant will suffer is that resulting
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from a subsequent lawsuit.” Id. The Eighth Circuit explained that the “types of prejudice which
might support denial of a motion for voluntary dismissal” are: “(1) emotional and psychological
trauma associated with the experience of defending another lawsuit, (2) the prejudice resulting
from uncertainty over title to land, and (3) the absence of a justification for the proposed
dismissal.” Id. at 783.
The Defendants largely point to a failure of proof in opposing the Plaintiff’s motion to
dismiss without prejudice. Doc. 29. They are also fairly concerned about the ongoing threat of
future litigation. While quite sympathetic to the Defendants’ concerns, binding precedent dictates
that the threat of a subsequent lawsuit does not establish sufficient prejudice to deny a motion to
dismiss under Rule 41(a)(2). See Palucci, 780 at 783. Given that, and without more, dismissal
without prejudice is appropriate under Rule 41(a)(2).
After careful review and consideration, the Plaintiff’s motion to dismiss without prejudice
under Rule 41(a)(2) (Doc. 25) is GRANTED. The complaint (Doc. 1) is DISMISSED
WITHOUT PREJUDICE, and the case is closed.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 8th day of June, 2026.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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