First Community Bank v. Wootton New Holland LLC et al

Filing 28

ORDER granting 27 joint motion to dismiss with prejudice and incorporated memorandum in support; and dismissing with prejudice this action, with all parties to pay their own attorneys' fees and costs. Signed by Judge Kristine G. Baker on 5/24/2018. (cmn)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
FIRST COMMUNITY BANK
v.

PLAINTIFF
Case No. 1:16-cv-00109-KGB

WOOTTON NEW HOLLAND, LLC;
CAPITAL MACHINERY 1 CORP;
DEREK WOOTTON; and
DARRELL WOOTTON

DEFENDANTS
ORDER

Before the Court is a joint motion to dismiss with prejudice and incorporated memorandum
in support filed by plaintiff First Community Bank and separate defendants Wootton New Holland,
LLC, Derek Wootton, and Darrell Wootton (collectively “the Wootton Defendants”) (Dkt. No.
27). For the following reasons, the Court grants the motion.
By way of background, on September 7, 2017, the Court issued an Order terminating
Robert D. Stroud and Barrett S. Moore as counsel of record for separate defendants Wootton New
Holland, LLC, (“Wootton New Holland”) and Capital Machinery 1 Corp. (“Capital Machinery”)
(Dkt. No. 23). In the Court’s Order, the Court directed Wootton New Holland and Capital
Machinery to provide, within 30 days from the entry of that Order, certain information (Id., at 2).
Because corporations are not allowed to proceed pro se in this Court, Ackra Direct Mktg. Corp. v.
Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996), the Court directed Wootton New Holland and
Capital Machinery to retain counsel in this matter or risk being subject to default judgment (Id.).
More than 30 days have passed since the entry of that Order. Based on the joint motion to dismiss,
it appears that Wootton New Holland has retained counsel (Dkt. No. 27). Capital Machinery has
failed to comply with the Court’s Order. The stay in this matter expired by its own terms in
October 2017.

First Community Bank and the Wootton Defendants submit that they have reached an
agreement that resolves all claims in this matter. Their joint motion seeks dismissal with prejudice
of First Community Bank’s claims against all defendants in this action and seeks the dismissal
with prejudice of all claims as to all parties, with each party to pay his or its own attorneys’ fees
and costs.
However, the parties represent that a stipulation of dismissal, under Federal Rule of
Evidence 41(a)(1)(A)(ii), is not practical in this matter because Capital Machinery’s counsel has
withdrawn from representation. The parties assert that, because a business entity may not represent
itself, Capital Machinery cannot consent to a stipulation of dismissal. See Ackra, 86 F.3d at 857.
The parties further assert that Capital Machinery’s rights will not be prejudiced by the requested
dismissal because Capital Machinery has not asserted a counterclaim against First Community
Bank. The parties also represent that dismissal of this matter would be to Capital Machinery’s
benefit.
Under Federal Rule of Civil Procedure 41(a)(2), “[e]xcept 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.” District courts have “the sound discretion” to determine whether to allow a
party to dismiss a case voluntarily. Hamm v. Rhone-Poulenc Rorer Pharm. Inc., 187 F.3d 941,
950 (8th Cir. 1999). “In exercising that discretion, a court should consider factors such as whether
the party has presented a proper explanation for its desire to dismiss; whether a dismissal would
result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.”
Thatcher v. Hanover Ins. Group, Inc., 659 F.3d 1212, 1214 (8th Cir. 2011) (quoting Hamm, 187
F.3d at 950).

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For the first factor, the parties represent that First Community Bank and the Wootton
Defendants have reached a compromise of all claims, which is a proper explanation for their desire
to dismiss. For the second factor, the Court’s time and effort will not be wasted because the parties
request a dismissal with prejudice, prohibiting First Community Bank from refiling this case. The
final factor is the prejudice to defendants because of the dismissal. On March 30, 2017, the Court
issued an Order denying both of Capital Machinery’s motions to dismiss under Federal Rules of
Civil Procedure 12(b)(2) and 12(b)(6) (Dkt. No. 18). According to the Court’s Final Scheduling
Order, the parties must complete discovery no later than August 1, 2018, and this case is set for
trial on the week of October 9, 2018 (Dkt. No. 26). Based on the current procedural posture of
this case, defendants will not be prejudiced by dismissal. Also, Capital Machinery had 30 days to
retain counsel from the Court’s order relieving Mr. Stroud and Mr. Moore as counsel of record but
failed to do so. Capital Machinery will not be prejudiced by the joint dismissal.
The parties have shown that these factors weigh in favor of granting the requested motion.
For the above reasons, the Court grants the joint motion to dismiss with prejudice and incorporated
memorandum in support (Dkt. No. 27). The action is dismissed with prejudice, with all parties to
pay their own attorneys’ fees and costs.
It is so ordered, this the 24th day of May, 2018.

________________________
Kristine G. Baker
United States District Judge

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