The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge
This employment-related case was filed by plaintiff Annette Chrissos, a former employee of Giant Eagle Markets. Ms. Chrissos alleges, and Giant Eagle denies, that an atmosphere of sexual harassment caused Ms. Chrissos to resign from her job.
After the case was filed, Ms. Chrissos' attorney withdrew. Protracted proceedings occurred during which Ms. Chrissos represented herself. She then made an oral motion to dismiss without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). Giant Eagle has responded to the motion by asking the Court to dismiss the case with prejudice. For the following reasons, Ms. Chrissos' motion to dismiss without prejudice will be granted but subject to certain conditions outlined below. Giant Eagle's request to convert the dismissal to one with prejudice will be denied.
The Court turns first to the question of whether it has the power to dismiss this case with prejudice in response to Ms. Chrissos' request that the case be dismissed without prejudice. Rule 41 of the Federal Rules of Civil Procedure provides for the voluntary dismissal of a claim at a plaintiff's request. The relevant portion of Rule 41 states:
By Order of the Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. *** Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Fed.R.Civ.P. 41(a)(2). Implicitly, the last sentence of Rule 41(a)(2) allows a court to dismiss the action either "with prejudice" or "without prejudice." United States v. One Tract of Real Property, 95 F.3d 422, 425(6th Cir. 1996)(citing Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995); Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir. 1993); Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir. 1986)).
Despite this interpretation of Rule 41(a)(2), a trial court may not dismiss an action with prejudice in response to a plaintiff's request to dismiss without prejudice without providing the plaintiff notice of the Court's intent to dismiss the case with prejudice, the opportunity to be heard on that intent, and the opportunity to withdraw the motion to dismiss and to continue the litigation as an alternative to a dismissal with prejudice. Specifically, the Sixth Circuit Court of Appeals has stated:
First, the district court must give the plaintiff notice of its intention to dismiss with prejudice. Jaramillo, 59 F.3d at 79; Andes, 788 F.2d at 1037. Second, the plaintiff is entitled to an opportunity to be heard in opposition to dismissal with prejudice. Jaramillo, 59 F.3d at 79; Andes, 788 F.2d at 1037. Third, the plaintiff must be given an opportunity to withdraw the request for voluntary dismissal and proceed with the litigation. Jaramillo, 59 F.3d at 79; Marlow, 19 F.3d at 305; Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d Cir. 1988). This third requirement is essential because, unlike a dismissal without prejudice, a dismissal with prejudice operates as a rejection of the plaintiff's claims on the merits and res judicata precludes further litigation. Jaramillo, 59 F.3d at 79.
One Tract of Real Property, 95 F.3d at 425-26; see also O'Hara v. Bd. of Ed. of Brooklyn City School Dist., 72 Fed.Appx. 311, 315 (6th Cir. 2003); Perkins v. MBNA America, 43 Fed.Appx. 901, 902 (6th Cir. 2002). Once these three safeguards are satisfied, the Court must then determine whether granting the plaintiff's motion to dismiss without prejudice will cause the defendants to suffer "plain legal prejudice" as opposed to facing the mere prospect of a second lawsuit. See, e.g., Grover v. Eli Lilly Co., 33 F.3d 716 (6th Cir. 1994); Jones v. Lemke, No. 97-2350, 1999 WL 107984 (6th Cir. Feb. 9, 1999). If so, dismissal with prejudice may be appropriate.
In One Tract of Real Property, the Court of Appeals reversed the district court's decision to change a motion to dismiss without prejudice to a motion to dismiss with prejudice. The Court, citing the three safeguards, supra, observed that the government was never given the opportunity to withdraw its motion to dismiss and proceed on the merits. The Court stated:
However, we need not decide whether the government received proper notice of whether it had an opportunity to be heard, because we conclude that the District Court abused its discretion when it did not give the government the opportunity to withdraw its motion to dismiss. The District Court's action denied the ...