OConnell v. Chevron North America Exploration and Production Company

Filing 28

ORDER denying 25 Motion to Dismiss Chevron North America Exploration and Production Company as stated herein. Signed by Judge Jay C. Zainey on 10/6/2011. (gbw, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEAN O’CONNELL

CIVIL ACTION

VERSUS

NO: 11-483

CHEVRON NORTH AMERICAN
EXPLORATION AND PRODUCTION
COMPANY

SECTION: "A" (5)

ORDER
Before the Court is an Ex Parte Motion for Voluntary Dismissal of Defendant,
Chevron North America Exploration and Production Company. (Rec. Doc. 25) filed by
Plaintiff Sean O’Connell. The Court notes that the motion does not indicate whether Defendant
Chevron consents to or opposes the voluntary dismissal.
Plaintiff filed his original complaint (Rec. Doc. 1) on March 1, 2011, alleging that he was
severely injured when his boat struck an unmarked structure owned by Defendant. Plaintiff
asserts that the collision and resulting injuries were caused by the negligence of Defendant. On
March 14, 2011, Defendant filed his answer (Rec. Doc. 3). Defendant subsequently filed answers
(Rec. Doc. 9 and 18) to Plaintiff’s First Amended Complaint (Rec. Doc. 7) and Second
Amended Complaint (Rec. Doc. 17).
Via the instant motion, Plaintiff now moves to voluntarily dismiss Defendant Chevron
without prejudice. Plaintiff “specifically reserves his rights against all other parties.” (Rec. Doc.
25). Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that an action may be
dismissed by court order upon request of the plaintiff “on terms that the court considers proper.”
Fed. R. Civ. P. 41(a)(2). “[A]s 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. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).
"Typical examples of such prejudice occur when a party proposes to dismiss the case at a late
stage of pretrial proceedings, or seeks to avoid an imminent adverse ruling." In re FEMA Trailer
Formaldahyde Prods. Liab. Litig., 628 F.3d 157, 163 (5th Cir. 2010).
The opposing party has filed several answers in this case, which means that leave of court
is required in order for Plaintiff to dismiss Defendant. It is not clear from Plaintiff’s motion that
Defendant consents to Plaintiff’s request that his claims be dismissed without prejudice, and that
Plaintiff is not proposing to dismiss the case in order to avoid an imminent adverse ruling.
Defendant should have the opportunity to consent to or file an opposition to the motion.
Accordingly;
IT IS ORDERED that the Ex Parte Motion for Voluntary Dismissal of Defendant,
Chevron North America Exploration and Production Company. (Rec. Doc. 25) is DENIED
as filed. Plaintiff is to contact Defendant to see if Defendant will consent to a dismissal without
prejudice. If Defendant does not consent, then Plaintiff must re-file the motion as a contested
motion and properly set it for hearing pursuant to the local rules.

This 6th day of October 2011.

_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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