SULLIVAN SCHOOL ASSOCIATES LP v. TOWN OF BERWICK et al

Filing 24

ORDER ON PLAINTIFF'S UNOPPOSED MOTION TO DISMISS re: granting 23 Motion to Dismiss By JUDGE NANCY TORRESEN. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SULLIVAN SCHOOL ASSOCIATES,
LP,
Plaintiff,
v.
TOWN OF BERWICK, et al.,

)
)
)
)
) Civil No. 2:12-cv-00157-NT
)
)
)
)

Defendant.
ORDER ON PLAINTIFF’S UNOPPOSED MOTION TO DISMISS
Before the Court is Plaintiff’s unopposed Motion to Dismiss with prejudice
Counts II-V of its First Amendment Complaint, dismiss the individually named
Defendants with prejudice, and to remand this action to Maine Superior Court,
York County. For the following reasons, the Plaintiff’s Motion is GRANTED.
BACKGROUND
In August of 2011, the Plaintiff, Sullivan School Associates LP, entered into a
Letter of Understanding with the Town of Berwick to develop a vacant school in
Berwick, Maine into an affordable housing apartment building. On April 2, 2012,
James Webster, the Berwick Code Enforcement Officer, claiming the Berwick
Planning Board had not approved the footprint of an addition to the original
building or the inclusion of three-bedroom units in the development, issued a stop
work order (the “Stop Work Order”).

The Plaintiff filed a five-count Amended Complaint in the York County
Superior Court against the Town of Berwick, the Town of Berwick’s Code
Enforcement Officer, James A. Webster, and Board of Selectmen members Eleanor
Murphy and Robert Crichton, seeking to enjoin the Stop Work Order, and alleging
violations of the Fair Housing Act, 42 U.S.C. §§ 3604, 3617, and equal protection
and due process under the 14th Amendment, 42 U.S.C. § 1983, and the Maine
Constitution, Art. 1, § 6-A. See State Court Record Attachment 4 (Amended
Complaint) (Doc. 2-4).
On April 23, 2012, after a hearing, the Superior Court entered a Temporary
Restraining Order enjoining the Stop Work Order. See Additional Attachment 4
(Doc. 7-3). The Temporary Restraining Order permitted the Plaintiff to continue
work on the main school building but ordered the Plaintiff to stop construction on
the addition. On May 9, 2012, Defendants removed the action to this Court and filed
a Motion to Dismiss Plaintiff’s Amended Complaint. See Defendants’ Motion to
Dismiss (Doc. 9). On May 29, 2012, the Plaintiff filed a Motion to Stay pending the
disposition of the Plaintiff’s site plan amendment application before the Berwick
Planning Board and appeal of the Stop Work Order before the Berwick Board of
Appeals.
In this Motion, the Plaintiff asks the Court to dismiss Counts II-V with
prejudice, leaving only Count I, the Plaintiff’s claim for injunctive relief. The
Plaintiff also requests that the named Defendants be dismissed, and that this action
be remanded back to the York County Superior Court.

2

DISCUSSION
I.

Dismissal of Claims
Once the opposing party has answered a complaint and absent a stipulation

of dismissal by the parties, a plaintiff must move the Court to dismiss its action
under Federal Rule of Civil Procedure 41(a)(2). “The purpose of requiring [court
approval] is to ensure that ‘no other party will be prejudiced.’ Accordingly, in ruling
on a motion for voluntary dismissal, ‘[t]he district court is responsible . . . for
exercising its discretion to ensure that such prejudice will not occur.’” JRA
Architects & Project Managers, P.S.C. v. First Fin. Grp., Inc., 375 Fed. Appx. 42, 4243 (1st Cir. 2010) (quoting Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir.
2000) (internal quotation omitted)). Where, as here, the Plaintiff seeks to dismiss its
claims with prejudice, granting the motion is generally appropriate, unless a thirdparty would be unduly prejudiced by the dismissal of the claims with prejudice. ITV
Direct, Inc. v. Healthy Solutions, LLC, 445 F.3d 66, 70 (1st Cir. 2006).
In the absence of any opposition by Defendants to Plaintiff’s motion or any
showing of prejudice to third parties, the Court finds that dismissal of Counts II-V
of the Plaintiff’s Amended Complaint is appropriate.
II.

Dismissal of Parties
The Plaintiff has also moved to dismiss the individual Defendants. A party

may move the court to drop a party under Federal Rule of Civil Procedure 21. “The
grant or denial of a motion to bring in or to drop a party lies in the discretion of the
judge.” Charles Alan Wright & Arthur R. Miller, 7 Federal Practice & Procedure §

3

1688 (3d ed.). The Court’s consideration of the Plaintiff’s request to dismiss the
individual defendants is similar to its consideration of the Plaintiff’s request to
dismiss Counts II-V. None of the individual Defendants have opposed Plaintiff’s
Motion, and the Court perceives no prejudice to either the remaining Defendant or
any third parties and finds dismissal of the individual Defendants appropriate.
III.

Remand

The Court has discretion to retain or remand a case in which it had federal
question jurisdiction and pendent jurisdiction over state law claims, but in which
the federal claims have been dismissed. Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988). In deciding whether remand is
appropriate, the Court will weigh its interest in retaining jurisdiction and the
interests of judicial economy, convenience, fairness, and comity. Id. at n.7; Curtis v.
Town of Baileyville, No. 1:11-cv-00197-DBH, 2011 WL 2470112, at *1 (D. Me. June
21, 2011). “When the balance of these factors indicates that a case properly belongs
in state court, as when the federal-law claims have dropped out of the lawsuit in its
early stages and only state-law claims remain, the federal court should decline the
exercise of jurisdiction by dismissing the case without prejudice.” Id. at 350. The
Court must also consider whether a plaintiff is using manipulative tactics —
dismissing all federal claims — to secure her preferred forum. Id. at 357.
Here, judicial economy, convenience, comity, and fairness all counsel in favor
of remand. The Plaintiff has represented to the Court that it has submitted an
application with the Berwick Planning Board to amend its site plan for the housing

4

project. The Plaintiff argues that if its application is granted, its action before this
Court will be mooted. If its application is denied, the Plaintiff represents to the
Court that it will pursue an appeal of the Stop Work Order before the Town of
Berwick’s Board of Appeals and appeal the denial of the application under Maine
Rule of Civil Procedure 80B. The case remains in its early stages before this Court
and neither party has conducted any discovery. The Superior Court has already
issued a Temporary Restraining Order and preliminarily considered the merits of
Count I of the Amended Complaint. And perhaps most importantly, the Defendants
do not object to the dismissal of the federal claims against them and there has been
no showing that the Plaintiffs are using manipulative tactics. Each of the factors
supports remanding the remaining count of Plaintiff’s Amended Complaint to the
York County Superior Court.
CONCLUSION
The Court hereby GRANTS the Plaintiff’s Motion in its entirety. Counts II-V
of the Amended Complaint are DISMISSED WITH PREJUDICE and Defendants
James A. Webster, Eleanor Murphy, and Robert Crichton are DISMISSED as
defendants WITH PREJUDICE. The remaining Count of the Complaint is hereby
REMANDED to the York County Superior Court.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated: August 7, 2012

5