Lee et al v. Pearl River Basin Land and Development Company, LLC et al

Filing 56

ORDER & REASONS denying 36 Motion to Dismiss. Signed by Judge Martin L.C. Feldman on 4/2/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER ELIZABETH LEE,
wife of and CRAIG LEE

CIVIL ACTION

v.

NO. 13-0590

PEARL RIVER BASIN LAND
AND DEVELOPMENT COMPANY, LLC, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiffs' motion for voluntary
dismissal without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2). For the reasons that follow, the motion is
DENIED.
Background
This lawsuit arises from personal injuries allegedly sustained
when the plaintiff, while operating his skiff on a tributary of the
Pearl River in St. Tammany Parish, struck an unmarked and unlit
structure.
Craig Lee alleges that he was seriously injured on April 1,
2012 when the vessel he was operating allided with unlit and
unmarked
waterway.

support

pilings

to

a

bridge

constructed

across

the

On April 1, 2013 Lee and his wife sued Pearl River Basin

Land and Development Company, LLC (PRBL), the Town of Pearl River,
the State of Louisiana, and three fictitious insurers in state

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court.

Later that same day, the Lees sued PRBL, the Town of Pearl

River, and the three fictitious insurers in this Court.

The Lees

allege PRBL's negligence in failing to adequately mark the support
pilings caused Mr. Lee's injuries; they allege that the State of
Louisiana

(named

as

a

defendant

only

in

the

state

court

proceedings) owned the water bottom/bed of the "pump slew", a
navigable body of water; and they allege that the Town of Pearl
River owned or maintained the property on which the bridge is
attached and breached its duty to insure that it was not hazardous.
Plaintiffs seek to recover an estimated $2,000,000 in damages for
Mr. Lee's physical and mental injuries, as well as Mrs. Lee's loss
of consortium.
The Town of Pearl River answered in this federal litigation on
June 19, 2013, and PRBL filed its answer and amended answer in
October 2013.

Counsel participated in a scheduling conference,

after which time the Court issued a scheduling order, selecting the
pretrial conference date (July 24, 2014), the jury trial date
(August 25, 2014), and corresponding deadlines for discovery and
motion practice.
On December 18, 2013 PRBL filed a motion to compel discovery,
which was granted on January 13, 2014.

In granting the motion to

compel, Magistrate Judge Roby also ordered that an award of
reasonable expenses, including attorney's fees be awarded against
plaintiffs in PRBL's favor pursuant to Federal Rule of Civil

2

Procedure 37(a)(5)(A). Magistrate Judge Roby ultimately determined
that

$697.50

in

fees

was

reasonable,

and

ordered

that

the

plaintiffs satisfy the obligation to pay PRBL not later than 20
days from her February 11, 2014 order.

Although the January 13

order required plaintiffs to provide complete responses to PRBL's
discovery within 10 days from the order, the plaintiffs still have
not responded to the discovery.
On February 18, 2014, the Town of Pearl River filed a motion
for summary judgment and a request for oral argument on its motion,
noticing the motion for submission on March 26, 2014.

PRBL has

noticed the plaintiffs' depositions four times but, each time,
plaintiffs' counsel has advised that plaintiffs were unavailable,
even when plaintiffs' counsel had previously agreed to the date. On
March

10,

2014,

for

example,

less

than

48

hours

before

the

plaintiffs' depositions were to be taken, plaintiffs filed a motion
to quash the depositions based on plaintiffs' intent to seek
voluntary dismissal; after granting the defendants' motion to
expedite hearing on the motion to quash, Magistrate Judge Roby
denied the motion.

Shortly after requesting to quash their

depositions on March 10, the plaintiffs filed the present motion,
in which they seek to dismiss without prejudice their claims
against the defendants.
I.
Federal Rule of Civil Procedure 41(a)(2) provides:

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(a) Voluntary Dismissal.
...
(2) By Court Order; Effect. Except as provided in Rule
41(a)(1), an action may be dismissed at the plaintiff's
request only by court order, on terms that the court
considers proper.... Unless the order states otherwise,
a dismissal under this paragraph (2) is without
prejudice.
Whether to grant dismissal under Federal Rule of Civil Procedure
41(a) lies within the sound discretion of the trial court.

Davis

v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 199 (5th Cir.
1991).

The Court should freely grant a motion for voluntary

dismissal, the Fifth Circuit instructs, unless it finds that the
non-moving party “will suffer some plain legal prejudice other than
the mere prospect of a second lawsuit.”

See Hyde v. Hoffmann-La

Roche, Inc., 511 F.3d 506, 509 (5th Cir. 2007)(reversing district
court’s order dismissing case without prejudice where defendants
established legal prejudice by showing that their defense based on
Texas law was potentially stripped as a consequence of dismissal
without prejudice).

A motion for voluntary dismissal is properly

denied, for example, where it appears that “a plaintiff seeks to
circumvent an expected adverse result.” See Davis, 936 F.2d at 199
(affirming

district

court’s

denial

of

motion

for

voluntary

dismissal where the motion was filed more than a year after
removal, after months of filing pleadings, attending conferences,
and filing memoranda, and after the magistrate judge had considered
the case and had issued a recommendation adverse to plaintiff’s
position).

Plain legal prejudice may also be established when the
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plaintiff seeks dismissal at a late stage of the proceedings, or
where a defendant would be deprived of a limitations defense if the
plaintiff refiles his suit.

In re FEMA Trailer Formaldahyde

Products Liab. Litig., 628 F.3d 157, 162 (5th Cir. 2010)(citations
omitted).

Context is important.
II.

The plaintiffs seek to withdraw this federal suit, without
prejudice to their rights to continue to proceed against these
defendants in the simultaneously-filed state court action. In this
Court, the defendants have answered, the case has been set for
trial, the defendants have endeavored to engage in discovery, the
plaintiffs have obstructed discovery efforts,1 and one of the
defendants

requested

summary

judgment

requested voluntary dismissal.2

before

the

plaintiffs

On the other hand, in the state

court proceeding, the defendants complain that the case has not
been scheduled for trial and, it is suggested to the Court, no
discovery has taken place; the state court matter has not proceeded
beyond

the

filing

of

exceptions

for

no

cause

of

action

by

1

Magistrate Judge Roby decided the defendants' motion to
compel adversely to plaintiffs, ordering the plaintiffs to produce
discovery (which they still have not done) and sanctioning
plaintiffs. And Magistrate Judge Roby has denied the plaintiffs'
most recent effort to obstruct discovery; plaintiffs' motion to
quash depositions was denied.
2

The parties reasonably agreed to continue the submission
date on the motion for summary judgment until the Court resolved
the plaintiffs' request for voluntary dismissal.
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defendants. Nevertheless, the plaintiffs urge the Court to dismiss
this federal lawsuit without prejudice on the ground that the State
of Louisiana, which is a party to the state court action only, is
indispensable

and

because,

it

is

incredibly

defendants have not engaged in discovery.

suggested,

the

The plaintiffs fail to

support their request for voluntary dismissal.3
The plaintiffs' request to dismiss their lawsuit is, at best,
dilatory.

It is presented more than 11 months after the lawsuit

was filed.

The request comes after the defendants have answered;

after

counsel

participated

in

a

scheduling

conference

and

a

scheduling order issued; after a motion to compel was decided
adversely to plaintiffs and plaintiffs were taxed attorney's fees;
after a dispositive motion for summary judgment and accompanying
request for oral argument was filed; and after the plaintiffs have
persistently obstructed discovery efforts initiated by defendants,
including by filing a motion to quash, which was decided adversely
to plaintiffs.

Plaintiffs cannot simply file a lawsuit in federal

court, sit back and refuse to advance the case, and be granted an
unconditional without prejudice dismissal with a dispositive motion
scheduled for hearing and the trial date five months away.
Accordingly, the plaintiffs' motion for voluntary dismissal

3

Plaintiffs fail to explain why the State of Louisiana,
allegedly a joint tortfeasor, is an indispensable party. Rule 19
does not require the joinder of joint tortfeasors. See Nottingham
v. General American Communications Corp., 811 F.2d 873, 880-81 (5th
Cir. 1987).
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without prejudice is DENIED.

If the plaintiffs' pattern of delay

persists, the Court will entertain a motion to dismiss the case
with prejudice as a sanction, and, given the state of the record,
the Court will be obliged to look into the applicability of 28
U.S.C. § 1927 as to plaintiffs and counsel.
New Orleans, Louisiana, April 2, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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