Perrino et al v. Atrium Medical Corporation
ORDER granting 6 Motion to Dismiss. IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action. Signed by Judge John J Tuchi on 6/7/16.(KGM)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Frank A. Perrino, et al.,
Atrium Medical Corporation,
At issue is Defendant Atrium Medical Corporation’s Motion to Dismiss (Doc. 6),
to which Plaintiffs Frank A. and Yeseria Perrino filed a Response (Doc. 9) and Defendant
filed a Reply (Doc. 16). Defendant asks the Court to dismiss this action because, in a
prior action in this District, Case No. CV-15-00520-PHX-SPL, U.S. District Judge Logan
dismissed Plaintiffs’ claims with prejudice and, in any event, Plaintiffs’ claims are time
barred. (Doc. 6.)
In the prior action, Plaintiffs and Defendant jointly filed a Certificate of Conferral
stating that Defendant agreed not to file a Motion to Dismiss and Plaintiffs agreed to file
an Amended Complaint to address the agreed-upon defects in their Complaint by a date
to be set forth by the Court. (Case No. CV-15-00520-PHX-SPL, Doc. 18.) Judge Logan
ordered Plaintiffs to file the Amended Complaint by August 4, 2015, or “show cause in
writing why this action should not be dismissed for failure to prosecute within such
time.” (Case No. CV-15-00520-PHX-SPL, Doc. 19.) When Plaintiffs filed nothing by the
deadline, Judge Logan found they failed to demonstrate why the case should not be
dismissed for failure to prosecute and ordered “that this action is dismissed.” (Case No.
CV-15-00520-PHX-SPL, Doc. 23.)
By the plain language of the filings in the prior action, Judge Logan’s dismissal
was not based on a voluntary dismissal of the action by Plaintiffs under Federal Rule of
Civil Procedure 41(a), as they now urge. Instead, Plaintiffs were under an Order of the
Court to either file an Amended Complaint, as they had agreed, or show cause by a
specific date why the action should not be dismissed for failure to prosecute. Judge
Logan’s ultimate dismissal—entered six months before Plaintiffs brought the present
action—was under Federal Rule of Civil Procedure 41(b), which contemplates instances
when a plaintiff “fails to prosecute or to comply with these rules or a court order.” The
Rule continues, “[u]nless the dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule . . . operates as an adjudication on
the merits.” Fed. R. Civ. P. 41(b). Because Judge Logan’s dismissal Order did not state
that the dismissal was without prejudice, it was an adjudication on the merits, and
Plaintiffs may not now bring the same action again.
Corporation’s Motion to Dismiss (Doc. 6).
IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action.
Dated this 7th day of June, 2016.
Honorable John J. Tuchi
United States District Judge
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