Perrino et al v. Atrium Medical Corporation

Filing 18

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)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank A. Perrino, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-16-00512-PHX-JJT

Atrium Medical Corporation,

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Defendant.

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At issue is Defendant Atrium Medical Corporation’s Motion to Dismiss (Doc. 6),

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to which Plaintiffs Frank A. and Yeseria Perrino filed a Response (Doc. 9) and Defendant

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filed a Reply (Doc. 16). Defendant asks the Court to dismiss this action because, in a

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prior action in this District, Case No. CV-15-00520-PHX-SPL, U.S. District Judge Logan

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dismissed Plaintiffs’ claims with prejudice and, in any event, Plaintiffs’ claims are time

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barred. (Doc. 6.)

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In the prior action, Plaintiffs and Defendant jointly filed a Certificate of Conferral

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stating that Defendant agreed not to file a Motion to Dismiss and Plaintiffs agreed to file

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an Amended Complaint to address the agreed-upon defects in their Complaint by a date

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to be set forth by the Court. (Case No. CV-15-00520-PHX-SPL, Doc. 18.) Judge Logan

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ordered Plaintiffs to file the Amended Complaint by August 4, 2015, or “show cause in

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writing why this action should not be dismissed for failure to prosecute within such

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time.” (Case No. CV-15-00520-PHX-SPL, Doc. 19.) When Plaintiffs filed nothing by the

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deadline, Judge Logan found they failed to demonstrate why the case should not be

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dismissed for failure to prosecute and ordered “that this action is dismissed.” (Case No.

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CV-15-00520-PHX-SPL, Doc. 23.)

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By the plain language of the filings in the prior action, Judge Logan’s dismissal

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was not based on a voluntary dismissal of the action by Plaintiffs under Federal Rule of

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Civil Procedure 41(a), as they now urge. Instead, Plaintiffs were under an Order of the

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Court to either file an Amended Complaint, as they had agreed, or show cause by a

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specific date why the action should not be dismissed for failure to prosecute. Judge

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Logan’s ultimate dismissal—entered six months before Plaintiffs brought the present

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action—was under Federal Rule of Civil Procedure 41(b), which contemplates instances

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when a plaintiff “fails to prosecute or to comply with these rules or a court order.” The

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Rule continues, “[u]nless the dismissal order states otherwise, a dismissal under this

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subdivision (b) and any dismissal not under this rule . . . operates as an adjudication on

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the merits.” Fed. R. Civ. P. 41(b). Because Judge Logan’s dismissal Order did not state

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that the dismissal was without prejudice, it was an adjudication on the merits, and

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Plaintiffs may not now bring the same action again.

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IT

IS

THEREFORE

ORDERED

granting

Defendant

Atrium

Medical

Corporation’s Motion to Dismiss (Doc. 6).

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IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action.

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Dated this 7th day of June, 2016.

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Honorable John J. Tuchi
United States District Judge

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