United States District Court, D. Delaware
MARYELLEN NOREIKA UNITED STATES DISTRICT JUDGE
January 23, 2018, Plaintiffs, BRP Hold Ox, LLC and TDBBS, LLC
filed a complaint alleging that their former employee,
Defendant, William Chillean, violated contractual
noncompetition and non-disclosure obligations in accepting
new employment. (D.I. 2). On January 29, 2018, Plaintiffs
filed a request for injunctive relief to enjoin Mr. Chillean
from working for the new employer. (D.I. 6).
February 20, 2018, Defendant answered the complaint (D.I. 13)
and responded to the motion for injunctive relief (D.I. 14).
In his February 20, 2018 filings, Defendant challenged the
subject matter jurisdiction of this court. He also filed a
declaration attesting to the fact that he was no longer
working for the new employer. (D.I. 15). Thereafter, on
February 28, 2019, Plaintiffs withdrew their motion for
injunctive relief. (D.I. 21). The case was referred to Chief
Magistrate Judge Mary Pat Thynge for mediation, but there
have been no additional proceedings in this court.
April 11, 2018, Plaintiffs filed a new action in Delaware
Superior Court (D.I. 29 at 4). On April 25, 2018, Plaintiffs
filed the present motion to voluntarily dismiss their
district court complaint without prejudice pursuant to
Fed.R.Civ.P. 41(a)(2). (D.I. 28).
does not object to Plaintiffs' motion to dismiss
voluntary dismissal, but requests that the court order
Plaintiffs to "reimburse Defendant for some or all of
the litigation expenses incurred to date, as a prerequisite
to the dismissal of this action." (D.I. 29 at 1).
Defendant requests twenty days "from the date of the
court's order on Plaintiffs' motion to dismiss to
submit an application for such attorneys' fees and
costs." (D.I. 29 at 6).
request for fees is premised on what he calls
"Plaintiffs' frivolous motion for injunctive relief
(D.I. 29 at 6) and Plaintiffs' election to pursue its
claim in the Delaware Superior Court. (Id. at 4).
Defendant alleges that it offered Plaintiffs the same
information detailed in its declaration, but that Plaintiffs
proceeded to file its motion for a preliminary injunction
leading to fees and costs that should have been avoided.
Id. Plaintiffs object that confidential settlement
discussions were provided to the court by Defendant (D.I. 30
at 1-2) and assert that Defendant misrepresented the content
of those discussions by omitting that his earlier offer was
somewhat different and conditioned on Plaintiffs dismissing
the action. (D.I. 29 at 2). Because Plaintiffs refused to
accept that settlement, the action proceeded. Id.
41(a)(2) states "an action may be dismissed at the
plaintiffs request only by court order, on terms that the
court considers proper," and "[u]nless the order
states otherwise, a dismissal... is without prejudice."
Fed.R.Civ.P. 41(a)(2). Moreover, a motion for voluntary
dismissal without prejudice "should be granted absent
substantial prejudice to the defendant." Mobil Oil
Corp. v. Advanced Environmental Recycling Techs., Inc.,
203 F.R.D. 156, 157-58 (D. Del. 2001) (citation omitted).
"Substantial prejudice" means "plain legal
prejudice," and "[t]he mere prospect that a
defendant will face a subsequent lawsuit is not legal
prejudice." Reach & Assocs., P.C. v.
Dencer, 2004 WL 253487, *1 (D. Del. Feb. 9, 2004)
(citations omitted). Here, the court does not find such
substantial prejudice to exist. Indeed, the Defendant does
not object to the dismissal -but only to dismissal with the
payment of Defendant's fees and costs.
court, however, does not find that payment Defendant's
request for fees and costs is warranted in connection with
dismissing the case. The motion to dismiss was filed at the
early stages of the case. Neither party has taken discovery
and the "[f]he Court has not even entered a scheduling
order." (D.I. 28-3). Moreover, the court is not
persuaded that Plaintiffs' other actions - including
filing of the motion for a preliminary injunction and
electing to proceed in Superior Court - merit an award of
fees. As Plaintiffs note, what was offered during discussions
with Defendant prior to moving for a preliminary injunction
was not identical to what was provided in response to the
motion for a preliminary injunction. Moreover, it appears
that Plaintiffs acted reasonably in withdrawing their motion
expeditiously and choosing to file the Superior Court action
in light of the jurisdictional challenge raised by Defendant.
THEREFORE ORDERED this 26th day of September 2018
that Plaintiffs' motion to dismiss (D.I. 28) is GRANTED
and Defendant's request that payment of his fees and
costs be a prerequisite to the dismissal is DENIED.
Plaintiffs note that the later
affidavit "attest[ed] not simply that [Defendant] was
willing to leave his employment..., but that he
actually had done so," and is thus different.
(D.I. 29 at 2).
 Defendant cites to Total
Containment, Inc. v. Aveda Mfg. Corp., No. CIV. A.
90-4788, 1990 WL 290146 (E.D. Pa. Dec. 7, 1990) in support of
his claim that financial prejudice may be sufficient to grant
attorneys' fees. In that case, unlike here,
"considerable expenses in preparing for trial"
supported the imposition of legal fees. Id. at *3.
Specifically, the party seeking fees had incurred fees and
costs related to contesting the action, preparing numerous
motions, responding to additional filings, and attending and