GREENE et al v. NEW ENGLAND SUZUKI INSTITUTE

Filing 24

ORDER ON MOTION TO DISMISS granting 19 Motion to Dismiss without prejudice By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHAEL GREENE, and
DEBBIE BERNIER, on behalf of
E.G. their minor child
Plaintiffs,
v.
NEW ENGLAND SUZUKI
INSTITUTE,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

2:18-cv-00141-JAW

ORDER ON MOTION TO DISMISS
After the Court denied their request for a preliminary injunction, a student’s
parents move to voluntarily dismiss their lawsuit against the operator of a summer
educational program and request that the Court enter a dismissal without prejudice.
The educational program objects and asks the Court to dismiss the lawsuit with
prejudice. Applying First Circuit precedent, the Court dismisses the lawsuit without
prejudice.
I.

BACKGROUND
On April 2, 2018, Michael Greene and Debbie Bernier, parents and guardians

of E.G., filed a complaint. Compl. (ECF No. 1). New England Suzuki Institute (NESI)
answered on May 10, 2018. Answer (ECF No. 5). On May 15, 2018, the Plaintiffs
filed a motion for a preliminary injunction.

Pls.’ Mot. for Prelim. Inj. with

Incorporated Mem. of Law (ECF No. 8) (Pls.’ Mot.). On June 4, 2018, NESI filed its
response in opposition to the motion along with the declarations of three of its staff:

Assistant Director Wendy Sawicki, Co-Director Yasmin Vitalius, and President
Elizabeth Sellers. Def.’s Obj. to Pls.’ Mot. for Prelim. Inj. (ECF No. 9) (Def.’s Opp’n);
Def.’s Opp’n Attach. 1 Decl. of Wendy Sawicki; Def.’s Opp’n Attach. 2 Decl. of Yasmin
Vitalius; Def.’s Opp’n Attach. 3 Decl. of Elizabeth Sellers. On June 14, 2018, the
Plaintiffs filed their reply together with declarations by each of them. Reply Mem. in
Support of Pls.’ Mot. for Prelim. Inj. (ECF No. 10) (Pls.’ Reply); Pls.’ Reply Attach. 1
Decl. of Michael Greene; Pls.’ Reply Attach. 3 Decl. of Debbie Bernier.
On June 22, 2018, the Court entered an order denying the Plaintiffs’ motion
for preliminary injunction. Order on Mot. for Preliminary Inj. (ECF No. 18) (Order
on Preliminary Inj.). On July 31, 2018, the Plaintiffs filed a motion to dismiss. Mot.
to Dismiss (ECF No. 19).

On August 21, 2018, the Defendants filed a response in

opposition to the Plaintiffs’ motion to dismiss. Resp. to Mot. to Dismiss (ECF No. 21)
(Def’s. Opp’n). On August 30, 2018, the Plaintiffs filed a reply. Reply to Resp. to Mot.
to Dismiss (ECF No. 23) (Pls.’ Reply).
II.

POSITIONS OF THE PARTIES
A.

Plaintiffs’ Motion

Michael Greene and Debbie Bernier request that the Court dismiss the claims
in their Complaint, as:
The 2018 session of the NESI program has already taken place without
[their] child, E.G., in attendance. . . The Plaintiffs have determined that
it is counterproductive to expend significant time, effort, and expense in
pursuing a lawsuit while they feel they need to devote their time and
energy to healing their child.

2

Pls.’ Mot. at 2. The Plaintiffs argue that “dismissal without prejudice should be
permitted under the rules unless the court finds that the defendant will suffer legal
prejudice,” Id. at 2-3 (citing P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st
Cir. 1981)). According to the Plaintiffs:
[i]n deciding whether to grant a Rule 41(a)(2) motion, courts typically
look to “the defendant’s effort and expense of preparation for trial,
excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action, insufficient explanation for the need to take a
dismissal, and the fact that a motion for summary judgment has been
filed by the defendant.
Id. (citing Palmer v. Wells, No. 04-12-P-H, 2004 U.S. Dist. LEXIS 16154, at *20 (D.
Me. Aug. 11, 2004) (quoting Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir.
1969)). The Plaintiffs argue that because “the defendant has not filed a counterclaim,
neither party has filed a motion for summary judgment, nor have the parties engaged
in any depositions or other major expense-generating discovery initiatives,” the
Defendant would not be prejudiced by dismissal. Id. at 3.
B.

Defendant’s Response

NESI does not object to dismissal, but “objects to the ‘Statement of Michael
Greene and Debbie Bernier’ attached to the Plaintiffs’ Motion”, which it views as “an
attempt to reargue Plaintiffs’ position which has already been rejected by this Court.”
Def.’s Opp’n at 1. The Defendant also asks that “any dismissal of this matter . . . be
binding in any later filed action” because “Defendant had to drop everything and file
a substantive and extensive response to Plaintiffs’ motion”, and the Court had to
produce a “lengthy opinion which also took no small amount of time to prepare.” Id.
at 2.
3

C.

Plaintiffs’ Reply

The Plaintiffs oppose the Defendant’s request that the dismissal be granted
with prejudice, and “maintain that the dismissal of their complaint should be without
prejudice, as no discovery has occurred and NESI would not be legally prejudiced by
dismissal on the terms requested by Plaintiffs.” Pls.’ Reply at 1. The Plaintiffs state
that NESI “does not assert that it would be unfairly prejudiced by dismissal of
Plaintiffs’ complaint in any of the categories the court considers,” which “include
when a plaintiff (1) proposes to dismiss the case at a late stage of pretrial proceedings;
(2) seeks to avoid an imminent adverse ruling; or (3) seeks to deprive the defendant
of limitations or other defenses upon refiling.” Id. at 2 (citing In re FEMA Trailer
Formaldahyde Products Liability Litigation, 628 F3d 157 (5th Cir. 2010); Elbaor v.
Tripath Imaging, Inc., 279 F.3d 314 (5th Cir. 2002); 9 CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2366 (3d ed. 2010) (WRIGHT
& MILLER)).
III.

DISCUSSION
As the Defendant answered the Plaintiffs’ Complaint and the parties have not

stipulated to a dismissal, Federal Rule of Civil Procedure 41(a) applies:
(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.”
FED. R. CIV. P. 41(a)(2). Whether to dismiss an action without prejudice under Rule
41(a)(2) remains in the discretion of the Court. Doe v. Urohealth Sys. Inc., 216 F.3d
157, 160 (1st Cir. 2000); Alamance Indus., Inc. v. Filene's, 291 F.2d 142, 146 (1st Cir.
4

1961); Canadian Nat’l. Ry. Co. v. Montreal, Maine & Atl. Ry., Inc., 275 F.R.D. 38, 41
(D. Me. 2011) (citing JRA Architects & Project Managers, P.S.C. v. First Financial
Group, Inc., 375 Fed. Appx. 42, 43 (1st Cir. 2010)). “The basic purpose of Rule 41(a)(2)
is to freely permit the plaintiff, with court approval, to voluntarily dismiss an action
so long as no other party will be prejudiced.”

Id. (citing Puerto Rico Maritime

Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir. 1981)). In deciding whether to grant
a Rule 41(a)(2) motion, courts typically look to:
(1) the defendant’s effort and expense of preparation for trial; (2)
excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action; (3) insufficient explanation for the need to take
a dismissal; and (4) the fact that the motion is made at a critical juncture
in the ongoing processing of the case; and (5) whether a dispositive
motion has been filed by the defendant.
Lasbury v. People's United Bank, No. 2:14-cv-00338-JAW, 2016 WL 742894, at *2 (D.
Me. Feb. 24, 2016) (quoting Doe, 216 F.3d at 160).

The First Circuit clarified that

the district courts “need not analyze each factor or limit their consideration to these
factors.” Id.
The relevant factors, taken together, support dismissal without prejudice.
Regarding the first factor, NESI argues it “had to file a substantive and extensive
response to Plaintiffs’ motion” for a preliminary injunction, and it would therefore be
prejudiced by a dismissal without prejudice. Def.’s Opp’n at 2. However, as the Court
stated in Canadian National, “the speedy and extensive briefing and hearing on the
motion for preliminary injunction presaged a similar . . . effort . . . if the matter were
to proceed to trial.” 275 F.R.D. at 42. This factor weighs in favor of dismissal without
prejudice.
5

The second factor also favors dismissal without prejudice, as NESI does not
allege that the Plaintiffs caused excessive delay or failed to prosecute the action
diligently, and nothing in the record suggests otherwise.

The Court finds the

Plaintiffs’ explanation for the need for a dismissal—the fact that they lost at the
preliminary injunction stage, and the camp already took place without their
daughter’s participation— to weigh against prejudice under the third factor. Pls.’
Mot. at 2.

Similarly, given that the Court denied the Plaintiffs’ request for a

preliminary injunction on June 22, 2018, granting voluntary dismissal at this
procedural stage of the case would be appropriate and would not prejudice the
Defendant, as required under the fourth factor. The single remaining factor weighing
against a dismissal without prejudice is the Defendant’s objection, but standing
alone, the Defendant’s objection does not dictate a result in its favor.
The Defendant’s “main claim of prejudice is that they will suffer exposure to
potential re-litigation.” Canadian Nat’l, 275 F.R.D. at 42. The Court understands
the Defendant’s concern. The statement that the Plaintiffs attached to their motion
to dismiss gives little comfort that the Plaintiffs will not sue NESI again. The
Plaintiffs “categorically deny all allegations and accusations brought against us by
the [NESI] concerning the events surrounding their summer music camps in 2016
and 2017.” Pls.’ Mot. Attach. 1, Statement of Michael Green and Debbie Bernier at 1
(Jul. 31, 2018)). They describe NESI’s actions as “ruthless” and “reprehensible.” Id.
They state that their child “feels the people involved are cruel.” Id. They reiterate

6

that “[i]n no way is our decision an admission of any wrongdoing on our parts or lack
of culpability on NESI’s part.” Id.
Even discounting this statement as reflective of parental love and protection,
NESI could be forgiven for worrying that if the same issue presents itself, the parents
will initiate another similar lawsuit on the same grounds as the one they have
dismissed. The Plaintiffs have made it plain they still consider their actions not
merely legally justified, but morally right, and that they view NESI’s actions as not
merely legally indefensible, but morally wrong. Even so, the First Circuit wrote that
it would find an abuse of discretion by the trial court “only where the defendant would
suffer ‘plain legal prejudice’ as a result of a dismissal without prejudice, as opposed
to facing the mere prospect of a second lawsuit.” Doe, 216 F.3d at 160-61 (quoting
Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994) (quoting Cone v. W. Va.
Pulp & Paper Co., 330 U.S. 212, 217 (1947) (emphasis supplied)).
At the same time, based on the tenor of the Plaintiffs’ statement, the Court
wonders whether NESI need be so concerned about the prospect of a second lawsuit.
It would be surprising if the Plaintiffs sought to re-enroll their daughter at NESI and
there is no allegation that they have. After all, NESI is not the only program in
southern Maine for a young musically-inclined girl to obtain a musical education and,
given the tension with NESI, the Court hopes they have found an acceptable
alternative where their daughter’s allergies may be more readily accommodated. The
Court views the Plaintiffs’ statement as a final retort in a contentious argument as
they leave the room and slam the door, never to return.

7

Finally, if the Court dismissed this lawsuit with prejudice and if the Plaintiffs
sued NESI again, the litigation would devolve into whether the facts underlying the
second lawsuit were similar enough to the first to be barred. It strikes the Court that
if the Plaintiffs file a second lawsuit substantially similar to this lawsuit, the legal
path has already been traveled and if the Plaintiffs file a dissimilar lawsuit, the path
will have to be cut anew.
Under Federal Rule of Civil Procedure 41(a)(2), the usual rule is that the action
be dismissed without prejudice and applying the First Circuit factors, the Court
applies the usual rule to the Plaintiffs’ motion under Rule 41(a)(2).
IV.

CONCLUSION
The Court GRANTS Plaintiffs’ Motion to Dismiss (ECF No. 19) without

prejudice.

SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 8th day of November, 2018

8