The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff James F. Riley commenced the instant action seeking to recover for personal injuries allegedly cause by exposure to toxic chemicals. Presently before the Court are Defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety on the ground that Plaintiff's claims are barred by the applicable statute of limitations. Plaintiff cross-moves to voluntarily dismiss the action without prejudice.
Plaintiff was employed as a mechanic operator, line mechanic, and millwright by Crown Zellerback (a/k/a Forst James n/k/a Georgia Pacific) from approximately 1966 through 1998. Compl. at ¶ 67. In March 2002, Plaintiff began to feel ill. At that time, he had a cold and was "tired all the time." Riley Dep. at 209. On April 10, 2002, Plaintiff presented at Claxton-Hepburn Hospital. Id. Plaintiff thought he was having a heart attack. Id. On April 11, 2002, Plaintiff was given a blood transfusion. Id. at ¶¶ 298-99. On April 12, 2002, Plaintiff's doctors recommended that he be transferred to a hospital in Syracuse. Id. His physicians suspected that he was suffering from leukemia. Id. Plaintiff's physicians explained to him that the physicians in Syracuse "would know more about that, that they were more qualified or equipped with treating that type of cancer." Id; Pl.'s Stmnt. of Mat. Facts at ¶ 9 ("Plaintiff was . . . aware that some form of cancer or leukemia was a mere possibility and that he needed to be transferred to Upstate Hospital in Syracuse because the Syracuse hospital was better equipped to treat such a cancer."). Plaintiff's physicians advised him to take an ambulance to Syracuse. Riley Dep. at 297. The physicians were afraid that Plaintiff could die. Id. Believing that he could die during the transfer, Plaintiff elected not to go by ambulance, but to travel with his wife so he could spend time with her. Def.'s Stmnt. of Mat Facts at ¶ 13. On April 12, 2002, Plaintiff signed an Emergency Authorization for Transfer form. The form indicated that the reason for the transfer was "anemia, thrombocytopenia, peripheral blasts and evaluation and management of possible acute leukemia." Plaintiff was diagnosed with Acute Myeloid Leukemia on or about April 12, 2002. Compl. at ¶ 68.
Plaintiff commenced the instant action by filing a summons and complaint with the County Clerk of Jefferson County, New York on April 13, 2005. Presently before the Court are Defendants' motions for summary judgment seeking dismissal of the Complaint in its entirety on the ground that the action is time-barred, and Plaintiff's cross-motion to voluntarily dismiss the action.
a. Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(a)(2)
The Court will first address whether Plaintiff should be permitted to voluntarily dismiss this action pursuant to Fed. R. Civ. P. 41(a)(2). A voluntary dismissal without prejudice under Rule 41(a)(2) will be allowed "if the defendant will not be prejudiced thereby." D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d Cir. 1996) (quoting Wakefield v. Northern Telecom Inc., 769 F.2d 109, 114 (2d Cir.1985)). The mere prospect of a second litigation does not constitute the requisite prejudice. D'Alto, 100 F.3d at 283. As the Second Circuit has explained:
Voluntary dismissal without prejudice is . . . not a matter of right. Factors relevant to the consideration of a motion to dismiss without prejudice include the plaintiff's diligence in bringing the motion; any "undue vexatiousness" on plaintiff's part; the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; the duplicative expense of relitigation; and the adequacy of plaintiff's explanation for the need to dismiss.
Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990). The Court will consider each of these factors.
1. Diligence in Bringing the Motion
The basis of Plaintiff's motion for dismissal is that "there are other proper venues in which Plaintiff can file his claims with longer statutes of limitations and more predictable accrual and discovery rules." Pl. Mem. of Law at 8. Plaintiff knew, or reasonably should have known, of any possible statute of limitations problems since the commencement of litigation. Plaintiff similarly knew, or reasonably should have known, the applicable New York accrual and discovery rules at the time he commenced this litigation back in April 2005. Thus, the case has now been pending for just over one year. The parties have already undertaken some discovery, including the exchange of written discovery, document production, speaking with potential expert witnesses, and taking some depositions. In addition, the defendants have already briefed and filed a motion for summary judgment. Plaintiff made no effort to voluntarily discontinue this action until faced with the summary judgment motions by Defendants. It, thus, does not appear that Plaintiff acted with diligence in bringing this motion. The Court finds that this factor weighs against permitting a voluntary dismissal.
The Court is unable to discern any vexatiousness on Plaintiff's part. Rather, it appears that the basis of Plaintiff's motion is simply to avoid a dismissal based on the statute of limitations. Thus, this ...