Stuart C. Irby Company v. Western Surety Company et al

Filing 69

OPINION AND ORDER granting 64 Motion for voluntary dismissal, and pursuant to Fed. R. Civ. P. 41(a)(2), defendants Brooks & Freund, LLC, and Western Surety Company, are dismissed with prejudice. Finding no just cause for delay, the Clerk shall enter judgment accordingly and terminate these defendants on the docket. Signed by Judge John E. Steele on 3/9/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STUART C. IRBY COMPANY,
Plaintiff,
v.

Case No: 2:16-cv-211-FtM-99CM

WESTERN
SURETY
COMPANY,
BROOKS & FREUND, L.L.C., and
BC POWER, INC.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Voluntary

Dismissal

of

Plaintiff’s

Claims

Against

Defendants

Western Surety Company and Brooks & Freund, LLC pursuant to Fed.
R.

Civ.

P.

41(a)(2)

(Doc.

#64)

filed

on

February

6,

2017.

Defendant BC Power, Inc. filed a Response in Opposition (Doc. #65)
on February 8, 2017.

For the reasons set forth below, the motion

is granted.
I.
Plaintiff Stuart C. Irby, Company (Irby or plaintiff) moves
pursuant to Federal Rule of Civil Procedure 41(a)(2) to voluntarily
dismiss

its

claims

against

defendants

Western

Surety

Company

(Western) and Brooks & Freund, LLC (Brooks) with prejudice as these
parties have settled.

The remaining defendant, BC Power, Inc. (BC

Power), opposes the dismissal, arguing prejudice.
Irby filed a four-count Second Amended Complaint (Doc. #17)
on July 8, 2016, alleging that it furnished electrical materials

to

BC

Power

Agreement.

as

the

electrical

subcontractor

under

a

Credit

BC Power was not fully paid by defendant Brooks, the

general contractor on the construction project, and BC Power is
owed a principal amount of $685,967.42.

BC Power in turn did not

fully pay Irby the unpaid principal amount for materials in the
amount of $46,145.05.

Thus, BC Power assigned to Irby its accounts

receivables for the principal amount of $685,967.42 through an
Assignment of Accounts Receivable.
22, 26.)

(Doc. #17, ¶¶ 2, 11-14, 19-

Although referenced and attached to the Second Amended

Complaint, Doc. #17-6, Exh. 6, plaintiff’s claims against BC Power
are not based on a breach of the Assignment.
Plaintiff’s first and third claims are against Brooks only,
and the second claim is against Western and Brooks only.

Under

the second and third claims, plaintiff alleges that it was assigned
BC

Power’s

accounts

receivables

representing

the

BC

Power

principal amount owed by Brooks to BC Power; plaintiff is therefore
asserting claims two and three against Western and Brooks on behalf
of BC Power as assignee to recover all amounts owed to BC Power
under the subcontract.

(Doc. #17, ¶¶ 39-40, 46-47.)

The fourth

claim asserts a breach of the Credit Agreement against BC Power
for failing to fully pay for the materials received.
also

filed

a

Crossclaim

subcontract agreement.

against

(Doc. #25.) 1

1

BC

Power

breach

of

a

Plaintiff states that once

Plaintiff is not named as the
accounts receivable in the Crossclaim.
- 2 -

for

Brooks has

assignee

of

BC

Power’s

Brooks and Western are dismissed, Irby’s claim against BC Power
for breach of the Credit Agreement, and Brooks’s Crossclaim against
BC

Power

for

breach

of

a

subcontract

agreement,

will

remain

pending.
BC Power filed a motion to set aside assignment, seeking to
set aside as void or voidable the Assignment based upon lack of
consideration, unconscionability, fraud in the inducement, and
mistake.

The Court denied the motion, finding that procedurally

BC Power’s arguments were improperly raised and out of time.

(Doc.

#61.)
II.
Rule 41 of the Federal Rules of Civil Procedure governs the
dismissal of actions.

A plaintiff may dismiss an action without

an order of the court at any time before the adverse party has
served an answer or moved for summary judgment.
41(a)(1).

Fed. R. Civ. P.

If, as is the case here, the adverse party has served

an answer, dismissal is available to a plaintiff only upon order
of the court and upon such terms and conditions as the court deems
appropriate.

Fed. R. Civ. P. 41(a)(2).

“[I]n most cases, a

[voluntary] dismissal should be granted unless the defendant will
suffer clear legal prejudice, other than the mere prospect of a
subsequent lawsuit, as a result.”

McCants v. Ford Motor Co.,

Inc., 781 F.2d 855, 856–57 (11th Cir. 1986) (emphasis in original).
Critical to this question is whether BC Power will “lose any

- 3 -

substantial

right

by

the

dismissal.”

Pontenberg

v.

Boston

Scientific Corp., 252 F.3d 1253, 1255 (11th Cir. 2001).
BC Power argues that it will be prejudiced if Brooks and
Western are dismissed from this case because BC Power “has been
told by the other parties that it will not receive any of the
settlement proceeds.

BC Power will be left with nothing and no

legal remedy in the present suit.”

(Doc. #65 at 3.)

Yet, based

upon the Assignment (Doc. #17-6, Exh. 6, Assignment of Accounts
Receivable), all rights, title, and interest to the amounts owed
to BC Power on the accounts receivable was assigned to Irby, and
there is nothing indicating – and BC Power does not argue – that
Irby could not settle the BC Power’s claims with Brooks and
Western.

Although BC Power believes that Irby has acted in

contradiction

of

the

parties’

intentions

in

entering

in

the

Assignment and that Irby has otherwise acted against BC Power’s
interests, as the Court noted in its previous Opinion and Order,
BC Power could have raised these arguments by filing a counterclaim
against Irby or stating its defenses as affirmative defenses in
its Answer, which BC Power has failed to do. 2

(Doc. #61 at 3.)

BC Power further argues that if this Court allows dismissal
of Brooks and Western, BC Power’s claims against Brooks will be
extinguished as Irby is attempting to settle BC Power’s claims

2

The Court is aware that BC Power has filed a motion for
leave to amend its answer and add a counterclaim against Irby (Doc.
#66), but dismissal of Brooks and Western will not prejudice BC
Power’s request to amend.
- 4 -

against Brooks relating to the amounts owed by Brooks to BC Power
to the detriment of BC Power.

The Court is unaware of any claim

by BC Power against Brooks for any amounts owed, presumably because
any such claim was assigned to Irby.

Thus, BC Power has failed

to establish that it will lose substantial rights as a result of
a Rule 41(a)(2) voluntary dismissal.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Plaintiff’s Motion for Voluntary Dismissal of Plaintiff’s
Claims Against Defendants Western Surety Company and Brooks &
Freund, LLC pursuant to Fed. R. Civ. P. 41(a)(2) (Doc. #64) is
GRANTED.

Pursuant to Federal R. Civ. P. 41(a)(2), defendants

Brooks & Freund, LLC, and Western Surety Company, are DISMISSED
with prejudice.

Finding no just cause for delay, the Clerk shall

enter judgment accordingly and terminate these defendants on the
docket.

This case otherwise remains pending.

DONE and ORDERED at Fort Myers, Florida, this
March, 2017.

Copies:
Counsel of Record

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9th

day of