Morehouse et al v. Fluor Enterprises, Inc. et al
OPINION AND ORDER: GRANTING 81 MOTION to Dismiss Defendant Gaylor Electric, Inc. by Defendant Gaylor Electric, Inc. Defendant Gaylor Electric, Inc. is DISMISSED WITH PREJUDICE from this case. Additionally, per the remaining Defendants' joint request, the Court will allow their answers to be amended to name GaylorElectric, Inc. as a nonparty. The clerk is DIRECTED to docket the proposed exhibits (DE # 83 -1 through DE # 83 -4) as amended answers as of the date of this order. Signed by Judge Rudy Lozano on 12/4/2017. (lhc) Modified on 12/5/2017 to correct text (lhc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
MYRON MOREHOUSE and AMY
FLUOR ENTERPRISES, INC.,
OPINION AND ORDER
This matter is before the Court on the “Motion to Dismiss
Defendant, Gaylor Electric, Inc.,” filed by the defendant, Gaylor
Electric, Inc., on August 23, 2017.
For the reasons set
forth below, the motion to dismiss (DE #81) is GRANTED.
Gaylor Electric, Inc. is hereby DISMISSED WITH PREJUDICE from this
Additionally, per the remaining Defendants’ joint request,
the Court will allow their answers to be amended to name Gaylor
Electric, Inc. as a nonparty.
The clerk is DIRECTED to docket the
proposed exhibits (DE #83-1 through DE #83-4) as amended answers as
of the date of this order.
On January 12, 2016, the plaintiffs, Myron and Amy Morehouse
(“Plaintiffs”), filed a complaint for damages stemming from the
(“ECOA”), and Alcoa, Inc. (“Alcoa”). (DE #1.) Plaintiffs moved to
Induction, LLC (“ABP”) and Gaylor Electric, Inc. (“Gaylor”) on July
Magistrate Judge John E. Martin granted
Plaintiffs’ motion to amend on July 28, 2016, and the amended
complaint was docketed on August 3, 2016.
(DE #43 & DE #44.)
defendants have filed an answer to the amended complaint.
#45, DE #47, DE #48, DE #58, & DE #64.)
On August 23, 2017, Gaylor
filed the instant motion to dismiss, requesting that the Court
enter an order dismissing it from the lawsuit with prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(2).
Gaylor attached to its motion a “Stipulation to Dismiss” signed
only by its own attorney and Plaintiffs’ attorney. (DE #81-1.) On
September 6, 2017, Fluor, ECOA, Alcoa, and ABP (collectively,
“Defendants”) filed a “Joint Objection to Gaylor Electronic, Inc.’s
Motion to Dismiss or Alternatively, Defendants’ Joint Motion for
Leave to Amend Answers to Name Gaylor Electronic, Inc. as a NonParty,” pointing out that they had not agreed to the dismissal of
Plaintiffs’ claims against Gaylor and objecting to the dismissal in
order to preserve their rights to name Gaylor as a nonparty under
Indiana Code 34-6-2-88; Defendants also request leave to file
amended answers in the event the motion to dismiss is granted. (DE
dismissing Gaylor and allowing Defendants to file an amended answer
naming Gaylor as a nonparty.
Gaylor has not filed any
Thus, the motion is ripe for adjudication.
Federal Rule of Civil Procedure 41(a)(2) provides that an
“action may be dismissed at the plaintiff’s request only by court
order, on terms that the court considers proper.”
Fed. R. Civ. P.
41(a)(2) (emphasis added). Unless otherwise stated, such dismissal
is without prejudice.
The Seventh Circuit has delineated
several factors for a district court to consider when determining
whether a plaintiff’s motion for voluntary dismissal should be
preparation for trial, excessive delay and lack of diligence on the
part of the plaintiff in prosecuting the action, insufficient
explanation for the need to take a dismissal, and the fact that a
motion for summary judgment has been filed by the defendant.” Pace
v. S. Exp. Co., 409 F.2d 331, 334 (7th Cir. 1969).
being mandatory, however, the factors are simply a guide for the
trial court judge, with whom discretion ultimately rests, to
Tyco Laboratories, Inc. v. Koppers Co., Inc., 627 F.2d
54, 56 (7th Cir. 1980).
“In exercising its discretion the court
follows the traditional principle that dismissal should be allowed
unless the defendant will suffer some plain legal prejudice other
than the mere prospect of a second lawsuit.”
Stern v. Barnett, 452
F.2d 211, 213 (7th Cir. 1971) (citation omitted).
Federal Rule of
plaintiff may dismiss an action without a court order via a
stipulation of dismissal signed by all parties who have appeared.
Fed. R. Civ. P. 41(a)(1)(A)(ii).
As an initial matter, the Court notes that the instant motion
to dismiss seems to conflate the two sections of Rule 41.
attached “Stipulation to Dismiss” (DE #81-1) is purportedly via
Rule 41(a)(2), yet stipulations are correctly brought pursuant to
Rule 41(a)(1)(A)(ii) and must be signed by all parties who have
appeared. Apparently recognizing that the stipulation is not valid
standing alone, Gaylor filed the motion to dismiss noting that Rule
41(a)(2) “provides the Court with the power to dismiss parties
without a signed stipulation by all parties.”
according to the rule itself, a request for dismissal under Rule
41(a)(2) is to be made by a plaintiff rather than by a defendant as
was done here.
Normally, the Court would require the motion to be
refiled to comply with proper procedures; however, for the sake of
judicial economy and because Plaintiffs have filed a “reply”
essentially supporting Gaylor’s motion (DE #84), the Court will
proceed with the analysis as if Plaintiffs had filed the original
Because both Gaylor and Plaintiffs have agreed that all claims
between them have been resolved, the only relevant factor to
consider is whether the remaining Defendants would suffer plain
legal prejudice as a result of Gaylor’s dismissal. Defendants have
objected to the dismissal on the sole ground that they wish to
preserve their rights to name Gaylor as a nonparty under Indiana
Any potential prejudice has been cured by the
objection itself. See Bloemker v. Detroit Diesel Corp., 687 N.E.2d
358, 359–60 (Ind. 1997) (a defendant in Indiana may preserve its
right to assert a nonparty defense against a dismissed defendant by
making a timely objection that asserts an intent to assert a
nonparty defense against the dismissed defendant); Nationwide Ins.
Co. v. Parmer, 958 N.E.2d 802, 808 (Ind. Ct. App. 2011) (“a
party-defendant need only object to a dismissal or claim that a
party-defendant should remain for purposes of allocation of fault
in order to preserve a nonparty defense”); Henderson v. Prerovsky,
“The Indiana Code section on comparative fault governs ‘any action based
on fault that is brought to recover damages for injury or death to a person or
harm to property.’
I.C. § 34–51–2–1.
‘[I]n an action based on fault, a
defendant may assert as a defense that the damages of the claimant were caused
in full or in part by a nonparty.’ I.C. § 34–51–2–14. A ‘nonparty’ is defined
as ‘a person who caused or contributed to cause the alleged injury, death, or
damage to property but who has not been joined in the action as a defendant.’
I.C. § 34–6–2–88.” Nationwide Ins. Co. v. Parmer, 958 N.E.2d 802, 807 (Ind. Ct.
No. 1:08–CV–0717, 2009 WL 1311095, at *1 (S.D. Ind. May 11, 2009)
(holding that by making an objection, a defendant had “properly
preserved its right to assert nonparty defenses with respect to
[other defendants], but that objection will not preclude their
dismissal”). Thus, the Court finds that the dismissal of Gaylor is
proper, and Gaylor is hereby dismissed from this action with
Additionally, although not technically necessary to
preserve Defendants’ rights, for the sake of clarity in the record,
Defendants’ request to amend their answers will be granted.
Nationwide, 958 N.E.2d at 808 (finding that the trial court did not
abuse its discretion in allowing a defendant to amend his answer in
order to add previously dismissed defendants as nonparties for
affirmative defense purposes); see also Thomas v. Black & Decker
(U.S.), Inc., No. 1:11-CV-1365-WTL-DML, 2014 WL 309380, at *2 (S.D.
Ind. Jan. 27, 2014).
Accordingly, for the reasons set forth above, the motion to
dismiss (DE #81) is GRANTED.
Defendant Gaylor Electric, Inc. is
hereby DISMISSED WITH PREJUDICE from this case.
the remaining Defendants’ joint request, the Court will allow their
answers to be amended to name Gaylor Electric, Inc. as a nonparty.
The clerk is DIRECTED to docket the proposed exhibits (DE #83-1
through DE #83-4) as amended answers as of the date of this order.
DATED: December 4, 2017
/s/RUDY LOZANO, Judge
United States District Court
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