Hartke v. Advent SVCS, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RONALD HARTKE,
Plaintiff,
V.
ADVENT SVCS, LLC,
Defendants.
Case No. 3:23-cv-301
JUDGE WALTER H. RICE
DECISION AND ENTRY SUSTAINING PLAINTIFF RONALD HARTKE'S
CONDITIONAL MOTION FOR LEAVE TO DISMISS STATUTORY
CLAIM (DOC. #54)
Before the Court is a Conditional Motion for Leave to Dismiss Statutory Claim
filed by Plaintiff Ronald Hartke ("Plaintiff" or "Hartke"). Doc. #54. Defendant Advent
Svcs., LLC ("Defendant" or "Advent") filed a response in opposition to the motion,
Doc. #58, and Plaintiff filed a reply in support of his motion. Doc. #59.
For the reasons stated herein, Plaintiff's Conditional Motion for Leave to
Dismiss Statutory Claim, Doc. #54, is SUSTAINED. Count Two, brought pursuant to
R. C. §1335. 11, is hereby DISMISSEDWITHOUT PREJUDICE, pursuant to Fed. R. Civ.
P. 21
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I. Background
This case was originally filed in the Greene County Common Pleas Court, but
was removed to this Court on October 5, 2023, pursuant to 28 U. S. C. § 1441. Doc.
#1. Upon removal, this Court has exercised and continues to exercise subject matter
jurisdiction over this case under 28 U. S. C. § 1332, as the parties are completely
diverse from each other and the amount in controversy is in excess of $75, 000.
This case involves a dispute between Advent, a Florida LLC which provides a
variety of technical and digital services, and Ronald Hartke, an employee and
salesman who helped Advent secure government contracts to provide services to
various agencies. Prior to his employment with Advent, Hartke worked in the same
role with another company, Ardent Technologies, Inc. ("ATI"). While working for
ATI, Hartke became skilled at securing a category of government contracts known
as "8(a)" contracts. These contracts, governed by Section 8(a) of the Small Business
Act, 15 U. S. C. § 637(a), give preferred status to bidding companies whose owners
are members of disadvantaged ethnicity or social classes. These preferred
companies can take advantage of their 8(a) status for up to nine years, at which
time they are considered "graduated" from the 8(a) program. When a company
graduates from 8(a) eligibility, they can, and are encouraged, to take on a
"mentorship" role with other 8(a) companies which still have eligibility
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After ATI graduated from 8(a) eligibility, it began mentoring Advent. In
exchange. Advent used ATI as a subcontractor for at least some of the government
contracts secured. To help implement the mentoring program. Advent hired Hartke,
an ATI employee who was experienced with the 8(a) program. It appears that
Hartke's employment with Advent was successful, as he helped secure seven
contracts for Advent between June and September 2022. Notably, and central to
many of the issues currently raised, these contracts contained provisions whereby
the federal government could renew the contract (or exercise the option to renew
the contract). The number of potential renewals varied from contract to contract,
with some permitting renewal into 2027.
However, the relationship between Hartke and Advent degraded and Hartke
was terminated as an employee on October 3, 2022. Hartke filed this suit on May
19, 2023, bringing four claims: Breach of Contract in relation to the Commission
Agreement ("Count One"); Violation of Ohio Rev. Code. (R. C. ) § 1335. 11 ("Count
Two"); Tortious Interference1 ("Count Three"); and Declaratory Judgment ("Count
Four"). Doc. #3. Advent's Answer contained three counterclaims: Breach of Contract
in relation to the Commission Agreement ("Counterclaim One"); Breach of Contract
1 Plaintiff himself has admitted that Claim Three has become substantially moot, yet he has
not dismissed this claim on his own prerogative, nor did Defendant move for summary
judgment on this claim. Doc. #33, PagelD#583; Doc. #44, PagelD 1039 n. 3.
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in relation to the Non-Competition Agreement ("Counterclaim Two"); and
Defamation ("Counterclaim Three"). Doc. #4. Pursuant to an Agreed Motion and
Stipulation of Partial Dismissal, the Court Dismissed Counterclaim Three on April 9,
2025. Doc. #37. On July 21, 2025, summary judgment was granted on Claim Four
and both remaining counterclaims, leaving Plaintiff's first three claims as the only
active claims. Doc. #49.
On October 10, 2025, the Court issued an Amended Preliminary Pretrial
Conference Order setting a trial date of February 2, 2026. Doc. #56.
II. Legal Standard
In the Sixth Circuit, Rule 41 permits a plaintiff to dismiss their entire
controversy. Fed. R. Civ. P. 41; Philip CareyMfg. Co. v. Taylor. 286 F. 2d 782, 785 (6th
Cir. 1961). When a plaintiff seeks to dismiss fewer than all the claims or parties, the
proper mechanism is Fed. R. Civ. P. 21. Philip Carey, 286 F. 2d at 785; Espinosa v.
First Advantage Background Servs. Corp., 343 F. R. D. 414, 415-16 (S. D. Ohio 2023)
(McFarland, J. ).
Rule 21 permits that "[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party. The court may also sever any claim against a
party. " Fed. R. Civ. P. 21. Courts are provided broad discretion in determining
whether to sever or dismiss claims under Rule 21. Parchman v. SLM Corp., 896 F. 3d
728, 733 (6th Cir. 2018). In exercising this discretion, courts examine a number of
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factors including "whether settlement of the claims or judicial economy would be
facilitated" and "whether prejudice would be avoided if severance [or dismissal]
were granted. " Id. ; Dix v. Atos IT Solutions & Servs., Inc., No. 1:18-cv-275, 2021 WL
1165762 (S. D. Ohio Mar. 25, 2021) (Cole, J. ).
III. Analysis
In the motion, Hartke states that he "wishes to drop his claim under [R. C.]
§1335. 11, with no intention of refiling it. " Doc. #54, PagelD #1150. However, he
worries that voluntarily dismissing the claim could result in a finding that Advent is
the prevailing party, a status that may justify an award of attorneys' fees to be paid
by Hartke. As a result, he asks the Court to employ a strategy previously used in
Gamer, whereby the party seeking dismissal was informed what the terms of
dismissal would be, permitting the party to make a final determination whether they
followed through with the dismissal. Garner v. Fuyao Glass America Inc., No. 3:21-
cv-51, 2022 WL 17811406 (Dec. 19, 2022) (Rose, J. ).
Neither party disputes that this dismissal is to be guided by Rule 21. The
present dispute centers around what constitutes "just terms" upon which dismissal
of the §1335. 11 may be permitted. Hartke seeks dismissal of the §1335. 11 claim
without prejudice and without attorneys' fees. Doc. #54, PagelD #1150. Advent
argues for more favorable terms for the dismissal, seeking attorneys' fees and,
barring an award of fees, dismissal with prejudice. Doc. #58, PagelD #1173. In reply,
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Hartke argues that an award of fees is not justified and that dismissal with prejudice
is unnecessary in light of his sworn declaration that he will not ever pursue §1335. 1 1
claims based on the subject matter of this case. Doc. #59, PagelD #1181. Hartke's
desired outcome functionally resembles dismissal with prejudice, as he will be
unable to refile this claim later. However, where dismissal with prejudice opens the
door to attorneys' fees, dismissal without prejudice does not. Id. at PagelD #1184
n. 2.
"[T]he purpose of the 'just terms' on dismissal is to ameliorate any
'gratuitous harm' the dismissal may cause the defendant. " Dix, 2021 WL 1165762
at *4. Multiple courts within this circuit have identified that this determination of
just terms under Rule 21 mirrors the analysis that takes place under Rule 41 to
determine what "terms the court considers proper" to dismiss the controversy in
its entirety. Id. at *4 n. 4; see Fed. R. Civ. P. 41(a)(2); see e. g., Wilkerson v. Brakebill,
No. 3:15-cv-435, 2017 WL 401212 (E. D. Tenn. Jan. 30, 2017); Arnold v. Heyns, No.
13-14137, 2015 WL 1131767 (E. D. Mich. Mar. 11, 2015).
Advent argues that the presence of the §1335. 11 claim has cast a shadow
over this case from its inception. In its view. Advent has suffered harm due to the
added costs of defending against that claim, especially when considering the
possibility that Hartke's success could include triple damages. Advent argues that
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dismissal without prejudice may not preclude Hartke from refiling the §1335. 11
claim if he finds he is successful on his other claims.
The Court believes that Advent's apprehension about having to defend
against future §1335. 11 claims brought by Hartke, though understandable, is a
matter of no concern. To invoke the doctrine of resjudicata, four elements must be
met: "(1) a final decision on the merits in the first action by a court of competent
jurisdiction; (2) the second action involves the same parties, or their privies, as the
first; (3) the second action raises an issue actually litigated or which should have
been litigated in the first action; and (4) an identity of the causes of action. " Sanders
Confectionery Prods., Inc. v. Heller Fin., 973 F. 2d 474, 480 (6th Cir. 1992) (quotations
omitted).
Though Advent maintains that the §1335. 11 claim is meritless, there is no
question that if it is brought, it should be brought in this action as it is based upon
the same factual allegations that underly the rest of the Complaint. Therefore, if the
claim is dismissed, it will be barred by the doctrine of res jud/cata from ever being
resurrected. See id. at 480-85 (In determining whether resjudicata applied to new
claims in secondary lawsuit, "what is important is not whether a particular claim is
compulsory, but whether the claim should have been considered during the prior
action. "). Moreover, if Hartke attempts to file such a claim in the future. Advent may
point to Hartke's briefing in this matter which clearly and unequivocally estops
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himself from bringing such a claim on the subject matter covered in this case. Doc.
#59, PagelD #1181-82; New Hampshire v. Maine, 532 U. S. 742, 749 (2001) (quoting
Davis v. Wakelee, 156 U. S. 680, 689 (1895) ('"[W]here a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may
not thereafter, simply because his interests have changed, assume a contrary
position. '").
In their request for fees, Advent identifies examples where the mere
existence of the §1335. 11 claim increased their costs. It specifically identifies eight
pages of briefing devoted to addressing §1335. 11. Doc. #58, PagelD #1177.
Additionally, Advent argues that the presence of the claim caused it "to extend
further money and resources than necessary in comparison to a standalone breach
of contract claim. " Id.
The Sixth Circuit has identified that an award of attorneys' fees is not required
when permitting a plaintiff to dismiss their claims. Bridgeport Music, Inc. v.
Universal-MCA Music Pub., Inc., 583 F. 3d 948, 954 (6th Cir. 2009). Instead, a court
should focus on whether a defendant would suffer "'plain legal prejudice' as a result
of a dismissal without prejudice, as opposed to facing the mere prospect of a
second lawsuit. " G rover by Grover v. EH Lilly & Co., 33 F. 3d 716, 718 (6th Cir. 1994).
To determine whether a defendant suffers plain legal prejudice, courts consider
factors such as "the defendant's effort and expense of preparation for trial,
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excessive delay and lack of diligence on the part of the plaintiff in prosecuting the
action, insufficient explanation for the need to take a dismissal, and whether a
motion for summary judgment has been filed by the defendant" Id. (citing Kovalic
v. DEC Intern., Inc., 855 F. 2d 471, 474 (7th Cir. 1988)).
Here, when weighing the factors outlined in Grover, the Court finds that
Advent would not suffer plain legal prejudice if the §1335. 11 claim were dismissed
without prejudice and without attorneys' fees. Hartke has been diligent in
prosecuting this case and the Court sees no evidence that the presence of the
§1335. 11 claim slowed this proceeding. Additionally, Hartke has provided a
satisfactory explanation as to the need to take the dismissal. Certainly, Advent has
expended effort and expense preparing for trial, and some amount of that may be
attributed to the presence of the §1335. 11 claim, but given that the claim is
predicated on the same facts as the remaining claims, and would require similar
testimony, evidence, and arguments, the marginal cost associated with the
§1335. 11 is relatively minor.
In the same vein. Advent has filed a motion for summary judgment on the
§1335. 11 claim, a motion which was overruled with respect to the relevant claim.
Doc. #49, PagelD #1084. This factor might weigh more heavily in favor of Advent if
the present motion was brought while the summary judgment motion was still
pending, as was the case in Grover and Kovalic. See Grover, 33 F. 3d at 717-18;
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Kovalic, 855 F. 2d at 473. Yet, as it stands, this Court has already determined that
summary judgment was not merited on the §1335. 11 claim and permitted it to be
tested at trial. For that reason this factor may weigh slightly in favor of Advent as
does the effort and expense spent in preparing for trial. However, the other two
factors, namely Hartke's diligent prosecution and the rationale proffered for
requiring the dismissal both weigh heavily in favor of dismissal without fees. On
balance, the Court believes that Advent will not suffer "plain legal prejudice" by
foregoing an award of attorneys' fees and thus declines to impose them as a
condition of dismissal.
IV. Conclusion
For the foregoing reasons. Plaintiff's Conditional Motion for Leave to Dismiss
Statutory Claim, Doc. #54, is SUSTAINED. Count Two, brought pursuant to R. C.
§1335. 11, is hereby DISMISSED WITHOUT PREJUDICE, pursuant to Fed. R. Civ. P.
21.
Date: November 21, 2025 Ui^S^T H. <-
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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