MARTIN v. BOULEVARD MOTEL CORP
Filing
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ORDER granting without prejudice 25 Amended Motion to Dismiss Counts III Through VI. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRENDA PIPPIN,
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Plaintiff,
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v.
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BOULEVARD MOTEL CORP.
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Defendant.
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____________________________________)
ABINAIR A. MARTIN,
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Plaintiff,
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v.
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BOULEVARD MOTEL CORP.
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Defendant.
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____________________________________)
GRACE PARKER,
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Plaintiff,
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v.
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BOULEVARD MOTEL CORP.
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Defendant.
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____________________________________)
2:14-cv-00167-JAW
2:14-cv-00168-JAW
2:14-cv-00169-JAW
ORDER ON MOTIONS TO DISMISS
On March 21, 2014, Brenda Pippin, Abinair Martin and Grace Parker, all
former employees of Boulevard Motel Corp. (Boulevard), filed complaints in
Cumberland County Superior Court for the state of Maine against Boulevard,
alleging that it had committed various violations of state and federal law by
terminating them. Decl. of Michelle Y. Bush Attach. 2 Compl. (ECF No. 3) (Pippin,
2:14-cv-00167-JAW) (Pippin), Decl. of Michelle Y. Bush Attach. 2 Compl. (ECF No. 3)
(Martin, 2:14-cv-00168-JAW) (Martin); Decl. of Michelle Y. Bush Attach. 2 Compl.
(ECF No. 3) (Parker, 2:14-cv-00169-JAW) (Parker). On April 22, 2014, Boulevard
removed each case to this Court. Notice of Removal (ECF No. 1) (Pippin); Notice of
Removal (ECF No. 1) (Martin); Notice of Removal (ECF No. 1) (Parker).
On January 13, 2015, the Plaintiffs moved to dismiss certain counts in each
Complaint without prejudice. Am. Notice of Voluntary Dismissal of Count III, or in
the Alternative, Mot. to Dismiss Count III (ECF No. 23) (Pippin); Am. Notice of
Voluntary Dismissal of Counts III-VI, or in the Alternative, Mot. to Dismiss Counts
III-VI (ECF No. 25) (Martin); Am. Notice of Voluntary Dismissal of Counts III-V, or
in the Alternative, Mot. to Dismiss Counts III-V (ECF No. 23) (Parker). While not
objecting to the dismissals, on February 3, 2015, Boulevard objected to dismissals
without prejudice and urged the Court to dismiss each count with prejudice. Def.’s
Opp’n to Pl.’s Am. Notice of Voluntary Dismissal of Count III, or in the Alternative,
Mot. to Dismiss Count III (ECF No. 27) (Pippin); Def.’s Opp’n to Pl.’s Am. Notice of
Voluntary Dismissal of Counts III-VI, or in the Alternative, Mot. to Dismiss Counts
III-VI (ECF No. 29) (Martin); Def.’s Opp’n to Pl.’s Am. Notice of Voluntary Dismissal
of Counts III-V, or in the Alternative, Mot. to Dismiss Counts III-V (ECF No. 27)
(Parker) (collectively Def.’s Opp’n). On February 17, 2015, the Plaintiffs filed replies
to Boulevard’s opposition. Pl.’s Reply to Def.’s Opp’n to Pl.’s Am. Notice of Voluntary
Dismissal or Alternative Mot. to Dismiss Count III (ECF No. 29) (Pippin); Pl.’s Reply
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to Def.’s Opp’n to Pl.’s Am. Notice of Voluntary Dismissal or Alternative Mot. to
Dismiss Counts III-VI (ECF No. 31) (Martin); Pl.’s Reply to Def.’s Opp’n to Pl.’s Am.
Notice of Voluntary Dismissal or Alternative Mot. to Dismiss Counts III-V (ECF No.
29) (Parker).
Although the parties have assumed that Federal Rule of Civil Procedure
41(a)(2) applies to the Plaintiffs’ request to dismiss fewer than all of their counts,
courts have concluded that Rule 41 applies only to dismissals of “actions,” meaning
all the claims, and that Rule 15 applies to dismissals of fewer than all the claims in
an action.1 eCash Techs., Inc. v. Guagliardo, 35 Fed. Appx. 498, 499 (9th Cir. 2002);
Chan v. Cnty. of Lancaster, No. 10-cv-03424, 2013 U.S. Dist. LEXIS 78099, at *50
(E.D. Pa. June 4, 2013) (“The proper procedural mechanism for dismissing less than
all of the claims in an action is a motion to amend under Federal Rule of Civil
Procedure 15(a)”); Hells Canyon Pres. Council v. United States Forest Serv., 403 F.3d
683, 687 (9th Cir. 2005) (“In the specific context of Rule 41(a)(1), we have held that
the Rule does not allow for piecemeal dismissals. Instead, withdrawals of individual
claims against a given defendant are governed by Federal Rule of Civil Procedure 15,
which addresses amendments to pleadings”); 9 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE
AND
PROCEDURE § 2362 (3d ed. 2008) (“A plaintiff who
wishes to drop some claims but not others should do so by amending his complaint
pursuant to Rule 15”) (WRIGHT & MILLER).
Boulevard recognized that Rule 41(a) might not apply, but it proceeded to analyze the motion
under Rule 41. Def.’s Opp’n at 2.
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Whether considered under Rule 41 or Rule 15, however, the result is the same.
There is no reason under either Rule not to grant the motion; the Plaintiffs do not
wish to proceed with these claims and Boulevard does not wish to defend them. The
Court would grant the motion under either Rule.
Even though Boulevard cites the First Circuit’s four-factor test in Doe v.
Urohealth Systems, Inc., 216 F.3d 157 (1st Cir. 2000) for determining whether a
dismissal should be with or without prejudice, the Urohealth factors are less relevant
when a plaintiff is moving to amend a complaint to dismiss fewer than all the counts;
the Plaintiffs in this case are going to maintain their lawsuit against Boulevard on
narrower grounds.
The first Urohealth Systems factor, for example, is “the
defendant’s effort and expense of preparation for trial.” Id. at 160 (internal citations
and quotation marks omitted). In Urohealth, where the plaintiff dismissed the entire
case on the eve of a decision on a motion for summary judgment and filed a state court
action making the same substantive claims, this factor was germane because the
defendant faced doing the same work twice, once in federal and again in state court.
Id. at 160-61.
Here, however, as the number and complexity of the claims against Boulevard
are melting, Boulevard faces substantially less, not more work preparing for trial as
a result of the Plaintiffs’ motions. Indeed, Boulevard is receiving a gift from the
Plaintiffs’ strategic decision to narrow their claims to retaliation only and to jettison
such potentially problematic counts as gender discrimination, sexual harassment,
hostile work environment, race discrimination, and age discrimination. A similar
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analysis applies to each of the three remaining Urohealth factors. In objecting to the
dismissals, Boulevard is looking too hard at the gift.
Boulevard’s real gripe is that, if the dismissal is without prejudice, it faces the
possibility of another lawsuit based on the dismissed claims. If the Plaintiffs had
moved to dismiss all claims under Rule 41, this possibility would have been the rule,
not the exception. FED. R. CIV. P. 41(a)(1)(B) (“Unless the notice or stipulation states
otherwise, the dismissal is without prejudice”); id. 41(a)(2) (“Unless the order states
otherwise, a dismissal under this paragraph (2) is without prejudice”). The possibility
of multiple filings of the same complaint based on the same facts is cabined by the
two dismissal rule. Id. 41(a)(1); 9 WRIGHT & MILLER § 2368.
Here, analyzed as a Rule 15 motion, the deadline for amending the pleading in
these cases was July 23, 2014, a date long since passed. Scheduling Order at 2 (ECF
No. 6) (Pippin, Martin, Parker).
The Plaintiffs would face an impossible task
convincing the Court that once dropped, they should be allowed to revive the same
claims in this lawsuit. As for the prospect of a second lawsuit based on the dismissed
claims, Boulevard will be in no different position than it would have been if the cases
had been dismissed in their entirety under the ordinary application of Rule 41.
As a practical matter, Boulevard’s fears of multiple litigation are more
chimerical than real. If these cases settle, the Court suspects that Boulevard’s able
counsel will require a settlement agreement so ironclad that it effectively banishes
any passing thought of a second lawsuit based on the same facts. If the cases do not
settle and the Plaintiffs win, they are likely to be well satisfied with the fruits of their
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victories. If they lose, they are just as likely to lose their appetite for courtroom
battles with Boulevard. Finally, if Boulevard’s worst fears are realized and the
Plaintiffs re-file the dropped claims in state or federal court, it seems wiser to deal
with the issue then, rather than to anticipate something that will probably never
happen.
Returning to whether these motions are properly considered Rule 15 or Rule
41 motions, since the result is the same, it elevates form over substance to draw a
distinction for purposes of relief and the Court rules on the motions as written and
argued.
The Court GRANTS WITHOUT PREJUDICE the Plaintiffs’ Amended Motion
to Dismiss Count III (ECF No. 23) (Pippin, 2:14-cv-00167-JAW), Amended Motion to
Dismiss Counts III Through VI (ECF No. 25) (Martin, 2:14-cv-00168-JAW), and
Amended Motion to Dismiss Counts III Through V (ECF No. 23) (Parker, 2:14-cv00169-JAW).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 20th day of February, 2015
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