Harward v. Gaebler et al

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
Nicholas Harward,
Plaintiff,
v.
Brandy Gaebler and Teri Williams,
Defendants.
REPORT AND RECOMMENDATION
Case No. 2:25-cv-00698-TS-DBP
District Judge Ted Stewart
Chief Magistrate Judge Dustin B. Pead
Before the court is Defendants’ Motion to Dismiss for Failure to State a Claim.1 Rather
than opposing that motion, Plaintiff Nicolas Howard who is proceeding pro se, moves the court
to dismiss this case voluntarily under Fed. R. Civ. P. 41(a)(2).2 Defendants respond to Plaintiff’s
Motion noting that Plaintiff threatens to bring this same suit again in the future. Defendants
therefore seek attorney fees as a condition for dismissal. As set forth herein, the undersigned
recommends that this matter be dismissed, and Defendants be awarded their reasonable fees.
BACKGROUND
Plaintiff, who is proceeding pro se, filed a Complaint alleging violations of the Federal
Wiretap Act,3 violations of the Utah Interception of Communications Act,4 and the California
Penal Code 632.5 All of these alleged violations occurred during a phone call between Plaintiff
1 ECF No. 8.
2 ECF No. 11.
3 18 U.S.C §§ 2510-2522. The Federal Wiretap Act prohibits interception of wire, oral, and electronic
communications without consent or certain exceptions such as for law enforcement.
4 Utah Code Ann § 77-23a-4. A person violates this section of the Utah Code if they “intentionally or knowingly
intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire,
electronic, or oral communication.”
5 This prohibits the intentional recording or eavesdropping on a confidential communication without the consent of
all involved parties.
Case 2:25-cv-00698-TS Document 14 Filed 11/07/25 PageID.<pageID> Page 1
of 6

2
and Terri Williams. Harward allegedly asked Williams at the beginning of the call whether
Williams was alone. Williams represented she was, but the call was being recorded and Gaebler
“secretly eavesdropped [and] recorded” the communication.6 This allegedly violated the
applicable laws and Harward seeks actual damages in the amount of $100,000, statutory
damages, punitive damages, and injunctive relief preventing Defendants from using or
distributing the recorded conversation.
Defendants moved to dismiss Plaintiff’s Complaint noting that Harward filed the instant
action in the “midst of an ongoing Utah state protective order and custody proceeding between
Terri Willimas and Plaintiff.”7 Harward and Williams participated in the telephone call, and
Williams who was in Utah, asked her friend Gaebler to record the call. Williams notes that she
thus consented that the call could be recorded. “The call documents Plaintiff’s admission to
sexual assault of Williams, as well as other acts of domestic misconduct.”8 Defendants assert
Harward is attempting to intimidate and silence them by filing the instant complaint. Further, the
action is frivolous because “both the federal and state statutes contain an exception where one
party to the conversation … consents to the recording.”9 Because Williams consented to
recording the call, then the Complaint fails to state a claim for relief.
Harward did not file a response to Defendants’ Motion to Dismiss, Instead, Harward
moves to voluntarily dismiss the case relying on Fed. R. Civ. P. 41(a)(2) which provides, “an
action may be dismissed at the plaintiff's request only by court order, on terms that the court
6 Complaint at 2.
7 Motion to Dismiss at 1, ECF No. 8.
8 Id. at 2.
9 Id.
Case 2:25-cv-00698-TS Document 14 Filed 11/07/25 PageID.<pageID> Page 2
of 6

3
considers proper.”10 Plaintiff provides he seeks the dismissal of this matter in the interest of
judicial economy and efficiency because it will preserve the parties’ resources. Harward claims
to make the request in good faith without prejudice to any party.11 Defendants do not object to
dismissing this case. However, because the Complaint is without merit, and because Plaintiff
threatens to refile the same suit again to impose duplicative expenses, Defendants seek an award
of attorney fees as a condition of dismissal.
DISCUSSION
Rule 41 provides that “Except as provided in Rule 41(a)(1), an action may be dismissed
at the plaintiff's request only by court order, on terms that the court considers proper.”12
Ordinarily, a dismissal under Rule 41(a)(2) is without prejudice.13 “The rule is designed
primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the
imposition of curative conditions.”14
In Ohlander v. Larson,15 the Tenth Circuit set forth the analytical framework courts in
this circuit should follow when considering a motion for voluntary dismissal under Rule
41(a)(2). Normally a court should grant dismissal without prejudice, absent “legal prejudice” to a
defendant.16 “The parameters of what constitutes ‘legal prejudice’ are not entirely clear, but
10 Fed. R. Civ. P. 41(a)(2).
11 Plaintiff points to Davis v. USX Corp., 819 F.2d 1270 (4th Cir. 1987), where on appeal, the Fourth Circuit
addressed voluntary dismissals under Rule 41. On appeal the court held the district court abused its discretion by
denying a motion for voluntary dismissal based on the plaintiff’s refusal to comply with a condition limiting certain
causes of action that the plaintiff could pursue in state court.
12 Fed. R. Civ P. 41(a)(2).
13 Rule 41(a)(2) provides that “Unless the order states otherwise, a dismissal under this paragraph (2) is without
prejudice.”
14 Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005) (quoting Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d
354, 357 (10th Cir. 1996))
15 114 F.3d 1531 (10th Cir. 1997).
16 Id. at 1537.
Case 2:25-cv-00698-TS Document 14 Filed 11/07/25 PageID.<pageID> Page 3
of 6

4
relevant factors the district court should consider include: [1] the opposing party's effort and
expense in preparing for trial; [2] excessive delay and lack of diligence on the part of the
movant; [3] insufficient explanation of the need for a dismissal; and [4] the present stage of
litigation.”17 “Each factor need not be resolved in favor of the moving party for dismissal to be
appropriate, nor need each factor be resolved in favor of the opposing party for denial of the
motion to be proper.”18 Rather, these factors function as “practical” signposts in considering
what constitutes “legal prejudice”, with the answer being determined on a case-by-case basis.19
Applying these factors here leads to dismissing this matter without prejudice.
Defendants’ expenses and efforts in preparing for trial are minimal. There has not been excessive
delay or a lack of diligence by Plaintiff who is the moving party. Plaintiff seeks dismissal to save
resources for the parties and the case is in the very early stages of litigation.
As noted by the Tenth Circuit in Mitchell v. Roberts,20 the Ohlander decision also teaches
district courts “to insure substantial justice is accorded to both parties” under Rule 41(a)(2).21 To
that end, district courts should “consider the equities facing not only the defendant but also those
facing the plaintiff.”22 In considering the equities facing the parties, on balance, they favor
Defendants due to Plaintiff’s threats of refiling and imposing fees on Defendants. Defendants
suggest the court address this issue by ordering Plaintiff to pay reasonable attorney fees and in
17 Id. (citing Phillips U.S.A., Inc., 77 F.3d at 358).
18 Id.
19 Baeke, 413 F.3d at 1124.
20 43 F.4th 1074, 1084 (10th Cir. 2022).
21 Id. (quoting Ohlander, 114 F.3d at 1537).
22 Id.
Case 2:25-cv-00698-TS Document 14 Filed 11/07/25 PageID.<pageID> Page 4
of 6

5
support cites to Aerotech, Inc. v. Estes,23 Lewsi v. Aldoerffer,24 and Active Energy Group PLC v.
Scalzo25 a case from this court.
In Aerotech the Tenth Circuit provided that when “a plaintiff dismisses an action without
prejudice, a district court may seek to reimburse the defendant for his attorneys' fees because he
faces a risk that the plaintiff will refile the suit and impose duplicative expenses upon him.”26
Lewsi, applied this reasoning in granting a plaintiff’s motion to dismiss and awarding the
defendant reasonable attorney fees because the defendant was “subject to the possibility of a
claim being reasserted.”27 And this court reached a similar decision in Active Energy awarding
attorneys fees to compensate a party for the legal prejudice suffered for dismissing the case, the
risk of refiling, and imposing duplicate costs on that party.28
Here the same reasoning of these cases applies. Plaintiff has filed a questionable suit and
threatens to refile it imposing duplicate costs on Defendants.29 Thus, the undersigned will
recommend granting Plaintiff’s Motion to Dismiss under Rule 41(a)(2) and awarding Defendants
reasonable attorney fees as a condition of dismissal.
REPORT AND RECOMMENDATION
For the reasoning set forth above, the undersigned RECOMMENDS that
Defendants’ Motion to Dismiss for Failure to State a Claim be DEEMED MOOT.30
23 110 F.3d 1523 (10th Cir. 1997).
24 2017 WL 11448854 (W.D. Okla).
25 2024 WL 1436618 (D. Utah).
26 Aerotech 110 F.3d at 1528.
27 2017 WL 11448854, at *1.
28 2024 WL 1436618 at *3.
29 Response to Rule 41(a)(2) Motion to Dismiss at 2-3, ECF No. 39.
30 ECF No. 8.
Case 2:25-cv-00698-TS Document 14 Filed 11/07/25 PageID.<pageID> Page 5
of 6

6
Plaintiff’s Motion to Dismiss under Fed. R. Civ. P. 41(a)(2) be GRANTED.31
And Defendants be awarded reasonable attorneys fees as a condition of dismissal.
NOTICE TO PARTIES
Copies of this Report and Recommendation are being sent to all parties, who are hereby
notified of their right to object.32 The parties must file any objection to this Report and
Recommendation within fourteen (14) days of service. “[A] party’s objections to the magistrate
judge’s report and recommendation must be both timely and specific to preserve an issue for de
novo review by the district court of for appellate review.”33 Failure to object may constitute a
waiver of the objections upon subsequent review.
DATED this 6 November 2025.
Dustin B. Pead
United States Magistrate Judge
31 ECF No. 11.
32 See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
33 United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060
(10th Cir. 1996).
Case 2:25-cv-00698-TS Document 14 Filed 11/07/25 PageID.<pageID> Page 6
of 6