Exigence LLC v. Catlin Underwriting Agency US Inc et al

Filing 95

ORDER granting 90 Plaintiff's voluntary Motion to Dismiss. This action is dismissed without prejudice. Signed by Judge Susan Webber Wright on 2/21/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
EXIGENCE LLC
Plaintiff
V.
CATLIN UNDERWRITING AGENCY
US, Inc., ET AL.

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NO: 4:09CV00915 SWW

Defendants
ORDER
On December 8, 2009, Exigence LLC (“Exigence”) commenced this diversity action
against Catlin Underwriting Agency US, Inc. (“Catlin”), Certain Underwriters at Lloyd’s of
London (“Lloyd’s”), John Does 1-20, and Courtney Baylark (“Baylark”), seeking a declaration
that Catlin was required to defend and indemnify Exigence in connection with a lawsuit that
Baylark had filed in state court.1 Now before the Court is Exigence’s motion for voluntary
dismissal without prejudice, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure
(docket entries #90, #91), a response by Catlin and Lloyd’s (docket entries #92, #93), and
Exigence’s reply (docket entry #94). After careful consideration, and for reasons that follow, the
motion is granted, and this action is dismissed without prejudice.
After Exigence commenced this action, the state court dismissed Baylark’s claims as
time-barred, and this Court granted the parties’ motion to stay this case until the state court’s
order of dismissal became final. Baylark appealed the state court order dismissing his complaint

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Exigence named Baylark as a defendant in this case out of an abundance of caution
because “its action might have been open to attack for failure to join a necessary party.” Docket
entry #58, at 2.

as time-barred, and Exigence filed a cross appeal, asserting that the trial court erred in denying
its motion to dismiss for insufficient process and service. On November 1, 2012, the Supreme
Court of Arkansas issued an opinion, reversing the trial court and dismissing Baylark’s claims on
cross appeal. See Baylark v. Helena Regional Medical Center, No. 11-1192, 2012 Ark. 405,
6-7, 2012 WL 5383106, *3 (Dec. 6, 2012)(unpublished opinion).
Now before the Court is Exigence’s motion to dismiss this declaratory judgment action
without prejudice. Exigence acknowledges that the Arkansas Supreme Court’s decision renders
this action moot, but Exigence asks that dismissal be without prejudice to Exigence’s right to
refile this action in the event that Baylark attempts to reassert his claims at a later date. Exigence
states that, considering the protracted history of this litigation, it has particular concern that
Baylark might attempt to refile the underlying action. Separate defendants Catlin and Lloyd’s
object to dismissal without prejudice unless the Court imposes the condition that if Exigence refiles this action, the separate defendants will receive costs and fees expended in this case.
“The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals which unfairly
affect the other side. Courts generally will grant dismissals where the only prejudice the
defendant will suffer is that resulting from a subsequent lawsuit.” Paulucci v. City of Duluth, 826
F.2d 780, 782 (8th Cir.1987). Under proper circumstances, a trial court can alleviate undue
hardship to a defendant by requiring that before the plaintiff may refile the action, the plaintiff
must pay the defendant’s costs incurred in the first litigation.2 However, the Court does not find

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Fed. R. Civ. P. 41(d) states: “If a plaintiff who has once dismissed an action in any court
commences an action based upon or including the same claim against the defendant, the court
may make such order for the payment of costs of the action previously dismissed as it may deem
proper and may stay the proceedings in the action until the plaintiff has complied with the
order.”
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that such a requirement is warranted in this case. This is not a case of vexatious litigation, and
the Court finds no danger that defendants will suffer undue hardship if this case is dismissed
without prejudice. Exigence properly instituted this declaratory judgment action, and given the
resolution of Baylark’s claims in state court, Exigence properly seeks dismissal of this action,
without prejudice.
IT IS THEREFORE ORDERED that Plaintiff’s motion for voluntary dismissal without
prejudice (docket entry #90) is GRANTED. This action is DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED THIS 21st DAY OF FEBRUARY, 2013.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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