Board of Commissioners of the Southeast Louisiana Flood Protection Authority - East et al v. Tennessee Gas Pipeline Company, LLC et al

Filing 465

ORDERED that all of Plaintiff's claims against defendant P.R. Rutherfordare DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Defendant P.R. Rutherford's Motion to Dismiss for Failure to State a Claim and Ex Parte Motion for Hearing are DENIED AS MOOT. Signed by Judge Nannette Jolivette Brown on 10/10/2014. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOARD OF COMMISSIONERS OF THE
SOUTHEAST LOUISIANA FLOOD PROTECTION
AUTHORITY – EAST, et al

CIVIL ACTION

VERSUS

NO. 13-5410

TENNESSEE GAS PIPELINE COMPANY, LLC, et
al.

SECTION: “G”(1)

ORDER
On September 5, 2014, Defendant P.R. Rutherford filed a “Motion to Dismiss for Failure to
State a Claim.”1 According to the motion, P.R. Rutherford is an individual who passed away in 1983
and, because he is deceased, has no capacity to be sued under the applicable law.2 On September 18,
2014, Rutherford filed an “Ex Parte Motion for Hearing,”3 wherein he requests a hearing regarding
his Motion to Dismiss. On September 19, 2014, the Court granted Rutherford’s Ex Parte Motion
for Hearing and set oral argument for November 12, 2014 at 10:00 a.m.4
On September 30, 2014, Plaintiffs filed a “Notice of Voluntary Dismissal Without
Prejudice,”5 wherein they “voluntarily dismiss P.R. Rutherford, without prejudice, each party to bear
its respective attorneys’ fees and costs.”6 Plaintiffs state that “pursuant to Rule 41(a)(1)(A)(i) of the
Federal Rules of Civil Procedure, defendant P.R. Rutherford may be dismissed without order of the

1

Rec. Doc. 417.

2

Rec. Doc. 417-1 at p. 2.

3

Rec. Doc. 438

4

Rec. Doc. 440.

5

Rec. Doc. 441.

6

Id.

Court.”7 Plaintiffs argue that as of September 30, 2014, no defendant in this matter has filed an
answer or a motion for summary judgment.8
Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure provides that, “subject to Rules
23(e), 23.1(c), 23.2, 66, and any applicable federal statute, the plaintiff may dismiss an action
without a court order by filing a notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment.”9 Rules 23(e), 23.1(c), and 23.2 apply only to class
actions;10 Rule 66 governs an action in which the appointment of a receiver is sought or a receiver
sues or is sued.11 Neither Rule is applicable here, since this litigation is neither a class action nor
involves the appointment of a receiver. No federal statutes appear to bar Plaintiffs’ “Notice of
Voluntary Dismissal Without Prejudice.”12
Considering that the present motion is not subject to the exceptions provided in Rule

7

Id.

8

Id.

9

Fed. R. Civ. P. 41(a)(1)(A)(i).

10

See Fed. R. Civ. P. 23.

11

Fed. R. Civ. P. 66.

12

Rec. Doc. 441.

2

41(a)(1)(A)(i), and considering that no Defendant in this matter filed an answer or a motion for
summary judgment13 as of September 30, 2014, the date of plaintiffs’ Notice of Voluntary
Dismissal,
IT IS HEREBY ORDERED that all of Plaintiff’s claims against defendant P.R. Rutherford
are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendant P.R. Rutherford’s “Motion to Dismiss for
Failure to State a Claim”14 and “Ex Parte Motion for Hearing”15 are DENIED AS MOOT.

NEW ORLEANS, LOUISIANA, on this ______ day of October, 2014.

___________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

13

The Court notes that Plaintiffs filed a Motion for Partial Summary Judgment Regarding Louisiana Act
544 on August 6, 2014 (Rec. Doc. 389).
14

Rec. Doc. 417.

15

Rec. Doc. 438.

3