Threadgill, et al v. Orleans Parish Sch, et al

Filing 117

ORDER & REASONS granting Orleans Parish School Board's 108 Motion to Dismiss; pursuant to Federal Rule of Civil Procedure 41, OPSB's crossclaims are dismissed without prejudice, each party to bear its own costs. Signed by Chief Judge Sarah S. Vance on 2/22/2012. (Reference: 02-1122)(rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BUTCH THREADGILL, ET AL.

CIVIL ACTION

VERSUS

NO: 02-1122

ORLEANS PARISH SCHOOL BOARD, ET AL.

SECTION: R(1)

ORDER AND REASONS
Plaintiff in crossclaim Orleans Parish School Board moves
for a voluntary dismissal of its crossclaims against defendant in
crossclaim Mitch Crusto pursuant to Federal Rule of Civil
Procedure 41(a)(2).1

Mr. Crusto consents to the motion.2

Because the parties agree that the crossclaims should be
dismissed without prejudice, the Court GRANTS the motion.3

I.

DISCUSSION
On January 23, 2000, a severe hail storm caused significant

roof damage to Orleans Parish schools.

The Orleans Parish School

Board (“OPSB”) contracted with Mitch Crusto d/b/a Angelic Asset
Management, Inc. to adjust the insurance claims for the roof
damage with OPSB’s insurer, Travelers Insurance Company, and to

1

R. Doc. 109.

2

Id.

3

This moots Crusto’s motion to dismiss for failure to
state a claim. See R. Doc. 108.

contract on an emergency basis to repair the damaged roofs.
Crusto contracted with Butch Threadgill and Tom Weems through
their business, General Contracting and Consulting Services, LLC,
to prepare bids and estimates for loss and damage to the schools’
roofs.

Crusto entered into two contracts with Threadgill, Weems,

and General Contracting, both of which provide that “[a]ny
conflicts or disputes will be submitted to binding arbitration.”4
On April 15, 2002, plaintiffs filed this lawsuit against
Crusto and OPSB.5

Plaintiffs allege that they submitted repair

estimates and bid proposals to Crusto that were copyrighted to
Tom Weems, all rights reserved, and that Crusto violated
copyright law by distributing the bids to OPSB as his own for
approval.

Plaintiffs further allege that Crusto unlawfully

displayed the copyrighted work on his website.

In addition,

plaintiffs allege several state law causes of action against
Crusto, including breach of contract, fraud and violations of the
Louisiana Unfair Trade Practices Act.

Plaintiffs’ causes of

action against OPSB consist of a violation of the Unfair Trade
Practices Act for interfering with their ability to contract for
the work of repairing the roofs, and a claim that OPSB knew or
should have known that the information being used by Crusto was
copyrighted material.

4

R. Doc. 38, Exs. A and B.

5

R. Doc. 1.
2

Plaintiffs filed a second lawsuit on May 10, 2002, naming as
defendants Crusto and the City of New Orleans.6

The claims

plaintiffs raise against Crusto in the second complaint are
virtually identical to those raised in the first.

Plaintiffs’

claims against the City of New Orleans mirror the claims alleged
against OPSB in the first complaint.

The Court consolidated the

two actions on December 3, 2002.7
OPSB answered plaintiffs’ complaint and filed a crossclaim
against Crusto.8

The crossclaim alleges that Crusto’s contract

with plaintiffs is void as a matter of public policy.

In

addition, OPSB challenges its own contract with Crusto.

OPSB

alleges that when Crusto signed his contract with OPSB he was not
a licensed contractor and did not possess insurance as required
by Louisiana law.
On February 11, 2003, Crusto filed a motion to compel
arbitration and stay all proceedings, including litigation of
claims involving non-signatories to the arbitration agreement,
pending arbitration.9

Plaintiffs and Crusto entered arbitration

pursuant to this Court’s order,10 and on June 17, 2009 the Court

6

No. 02-1460, R. Doc. 1.

7

R. Doc. 31.

8

R. Doc. 26.

9

R. Doc. 38.

10

R. Doc. 65.
3

entered a judgment confirming the arbitration award against
Crusto.11

On December 15, 2011 the Court lifted the stay for

those claims not referred to the arbitrator, including OPSB’s
claims against Crusto.12

II.

OPSB now moves to dismiss these claims.

DISCUSSION
A decision as to whether to grant a dismissal under Federal

Rule of Civil Procedure 41(a) lies within the sound discretion of
the district court.

Davis v. Huskipower Outdoor Equipment, 936

F.2d 193, 199 (5th Cir. 1991).

The Fifth Circuit has explained

that, “as a general rule, motions for voluntary dismissal should
be freely granted unless the non-moving party will suffer some
plain legal prejudice other than the mere prospect of a second
lawsuit.”

Elbaor v. Triparth Imaging, Inc., 279 F.3d 314, 317

(5th Cir. 2002).

Here, the Court finds that Crusto will not

suffer legal prejudice, and therefore grants OPSB’s motion to
dismiss without prejudice.

There are no pending motions OPSB

seeks to avoid in this matter, and OPSB will continue to
prosecute its claims against Crusto in state court.

There is

therefore “no reason to proceed with an additional case in
federal court.”

See In re Tug Robert J. Bouchard, Inc., No. 05-

1420, 2008 WL 2692655, at *3 (E.D. La. June 30, 2008).

11

R. Doc. 84.

12

R. Doc. 106.
4

Moreover,

Crusto consents to the voluntary dismissal.13

Accordingly, the

Court finds that granting the motion to dismiss will not
prejudice Crusto.

III. CONCLUSION
The Court GRANTS OPSB’s motion to dismiss.

Pursuant to

Federal Rule of Civil Procedure 41, OPSB’s crossclaims are
dismissed without prejudice, each party to bear its own costs.

New Orleans, Louisiana, this22nd day of February, 2012.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13

R. Doc. 109 at 3.
5