Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burks v. Arvest Bank

October 24, 2006

JOHN A. BURKS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED PLAINTIFF
v.
ARVEST BANK, AS SUCCESSOR TO SUPERIOR FEDERAL BANK DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

CLASS ACTION COMPLAINT

ORDER

Before the Court is Plaintiff's Motion for Voluntary Dismissal, to which Defendant objects. For the reasons stated below, the Court denies the requested voluntary dismissal.

FACTUAL BACKGROUND

On March 1, 2006, Plaintiff John Burks, individually and on behalf of a purported class, filed this action in state court (Saline County Circuit Court). On May 10, 2006, within thirty days of being served with the Complaint, Defendant Arvest Bank ("Arvest") removed the action to this federal court. For cause, Arvest asserted that Plaintiff's state law claims involving the allegation that Arvest had charged a usurious rate of interest were completely preempted by federal law, specifically, the Home Owners' Loan Act ("HOLA"), 12 U.S.C. § 1461 et seq.

On June 8, 2006, Plaintiff filed a Motion to Remand. On August 23, 2006, this Court denied Plaintiff's Motion to Remand based on its conclusion that Section 4(g)(1) of HOLA completely preempted Plaintiff's attempt to recover the usurious interest allegedly charged by Arvest. (Order, Docket No. 16, a p. 7).

On September 6, 2006, Arvest filed a Motion for Judgment on the Pleadings, or, in the Alternative, for Summary Judgment. Plaintiff has not responded to that motion. Instead, on September 11, 2006, Plaintiff filed a Motion to Dismiss Without Prejudice.

DISCUSSION

Because Defendant has filed a Motion for Summary Judgment, the Plaintiff must obtain the Court's permission for the requested dismissal. Fed. R. Civ. P. 41(a)(2).

Despite the fact that Plaintiff's Complaint contains class allegations, no class has been certified and the Court therefore has no independent duty to approve any voluntary dismissal with the interests of the class in mind, as it would if a class had been certified. Fed. R. Civ. P. 23(e)(1).*fn1 Accordingly, the analysis of whether to grant the requested dismissal is governed solely by Fed. R. Civ. P. 41(a)(2).

"Motions to dismiss without prejudice are addressed to the sound discretion of the district courts." Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984). The following factors are relevant to the exercise of that discretion:

"(1) the defendant's effort and expense in preparing for trial;

(2) excessive delay and lack of diligence on the part of the plaintiff in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.