ARB CASE NO. 98-158
(Formerly Case No. 98-142)
ALJ CASE NO. 97-CER-001
DATE: July 27, 1999
In the Matter of:
TAMMY A. ANDERSON,
COMPLAINANT,
v.
DeKALB PLATING COMPANY,
INCORPORATED,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant Tammy A. Anderson, Pro se, DeKalb, Illinois
For the Respondent
Tami J. Reding, Frank, Miller, Melamed & Tabis, P.C.,
Chicago, Illinois
ORDER
On July 28, 1998, the Administrative Review Board issued a Final Order of
Dismissal in this case arising under the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §9610 (1994). Anderson v. DeKalb Plating, Co., ARB Case
No. 98 142. The Administrative Law Judge to whom the case had been assigned had entered an Order
[Page 2]
Recommending Dismissal of Complaint, in which he "recommend[ed] that the Complainant's petition
to withdraw her request for a hearing be granted and that her complaint be dismissed with prejudice."
Order Recommending Dismissal of Complaint at 1. The Board concluded that the dismissal was
appropriate, but determined that in the absence of a request for dismissal with prejudice, the case was
dismissed without prejudice. On October 15, 1998, the Board received a request from DeKalb Plating
Company, Inc. (DeKalb), the respondent, to modify our order to reflect that the complaint is dismissed with
prejudice.
As noted in our original order of dismissal in this case, Rule 41 of the Federal Rules
of Civil Procedure governs voluntary dismissals of environmental whistleblower cases. Anderson v.
DeKalb Plating, Co., ARB Case No. 98-142, ALJ Case No. 97-CER-1, slip op. at 1 (July 28,
1998). See also, Young v. Florida Power & Light Co, 93-ERA-30, Sec. Fin. Ord. Dismiss,
slip op. at 2, July 13, 1995. The ALJ in this case recommended dismissal with prejudice, but proffered
no explanation for this recommendation. Because a dismissal with prejudice prevents a complainant from
reinstituting a case, Ball v. City of Chicago, 2 F.3d 753 (7th Cir. 1993), it is not a sanction to
be imposed lightly. Indeed, Fed. R. Civ. Pro. Rule 41(a) (2), providing for voluntary dismissal by court
order, assumes that a voluntary dismissal is without prejudice unless the order states otherwise.
DeKalb, to prevail in its request that the case be dismissed with prejudice, must
establish that it will suffer plain, legal prejudice if the case is dismissed without prejudice. FDIC v.
Knostman, 966 F.2d 1133, 1142 (7th Cir. 1992). Factors to be considered in determining whether
a respondent will suffer legal prejudice include the respondent's effort expended in and the expense of trial
preparation, the complainant's excessive delay and lack of diligence in prosecuting the action, insufficient
explanation for the need to take a dismissal and the fact that respondent has filed a motion for summary
judgment. Tyco Laboratories, Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980). Not only
has DeKalb failed to articulate how Anderson's motion to withdraw implicates any of these factors, it has
failed to demonstrate that it is prejudiced in any way at all by such withdrawal. Consequently, DeKalb's
request that we modify our Final Order of Dismissal to indicate that the case is dismissed with prejudice
is DENIED.