Lenfest, v. Verizon Communications, Inc.

Filing 52

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered. Verizons 20 motion to strike and for leave to file a bill of costs is, to the extent it seeks leave to file a bill of costs, ALLOWED but, to the extent it seeks to strike language from plaintiffs 43 notice of voluntary dismissal, DENIED. (Danieli, Chris)

United States District Court
District of Massachusetts
)
BRIAN LENFEST, individually and )
on behalf of all others
)
similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
VERIZON ENTERPRISE SOLUTIONS,
)
LLC,
)
)
Defendant.
)
)

Civil Action No.
13-11596-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves a putative class action brought by Brian
Lenfest (“Lenfest”), who claims that defendant Verizon
Enterprise Solutions, LLC (“Verizon”) violated the Massachusetts
Consumer Protection Act, M.G.L. c. 93A, and was unjustly
enriched by failing to disclose minimum monthly charges for long
distance telephone service.
Pending before the Court is defendant’s motion to strike
and request for leave to file a bill of costs.

For the reasons

that follow, the Court will allow, in part, and deny, in part,
Verizon’s motion.
I.

Procedural History
On September 29, 2014, this Court issued a Memorandum &

Order that allowed Verizon’s motion to compel arbitration.
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The

case was stayed pending arbitration and the parties were
instructed to submit a joint status report with respect to the
progress of the arbitration proceeding on March 31, 2015 and
every six months thereafter.
On December 11, 2014, 74 days after this Court compelled
arbitration, Lenfest filed a notice of voluntary dismissal.
Lenfest stated that, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i),
he was dismissing the action with prejudice and without costs to
either party.

He also noted that “[t]he purpose of this

dismissal is so that Plaintiff can seek immediate review” of the
September, 2014 Order compelling arbitration.
The following day, Verizon requested that the Court defer
from entering the dismissal to give it time to file a response
to Lenfest’s notice of voluntary dismissal.
On December 19, 2014, Verizon filed a motion (1) seeking to
strike the portion of plaintiff’s notice of voluntary dismissal
that purports to authorize his right to seek immediate review of
this Court’s Order compelling arbitration and (2) requesting
leave to file a bill of costs pursuant to Fed. R. Civ. P.
54(d)(1).
II.

Motion to Strike
In support of its motion to strike, Verizon argues that

Lenfest’s notice of voluntary dismissal is legally flawed and
cannot authorize an appeal of this Court’s decision to compel
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arbitration and stay the case.

Verizon asserts that plaintiff

is attempting to evade the statutory prohibition on
interlocutory appeals of stay orders set forth in the Federal
Arbitration Act (“FAA”). See 9 U.S.C. § 16(b)(1).

Moreover,

defendant contends that the First Circuit’s “narrow exception”
to the general rule that an interlocutory order cannot be
appealed, established in John's Insulation, Inc. v. L. Addison &
Assocs., Inc., 156 F.3d 101, 107 (1st Cir. 1998), is
inapplicable here.
Lenfest responds that Verizon’s motion to strike is
improper under Fed. R. Civ. 12(f) because his own notice of
voluntary dismissal is not a “pleading.”

Moreover, plaintiff

contends that he is entitled to an immediate appeal of the
Court’s September, 2014 Order for two reasons.

Rather than

violating the FAA’s ban on interlocutory appeals, he asserts
that (1) once his voluntary dismissal is entered it becomes a
final decision appealable pursuant to 9 U.S.C. § 16(a)(3) and
(2) the form of his notice of voluntary dismissal satisfies the
exception created by the First Circuit that entitles a party to
seek review of an otherwise non-appealable interlocutory order
so long as certain requirements are met.
A.

Analysis

Lenfest filed his notice of voluntary dismissal with
prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), which
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allows a plaintiff to dismiss an action without a court order so
long as the opposing party has yet to file an answer or a motion
for summary judgment.

Here, Verizon had filed neither and thus

Lenfest’s notice of voluntary dismissal is permitted as of
right. Universidad Cent. Del Caribe, Inc. v. Liaison Comm. on
Med. Educ., 760 F.2d 14, 19 (1st Cir. 1985). The dismissal
automatically became effective upon the filing of the notice.
Jones, Blechman, Woltz & Kelly, PC v. Babakaeva, 375 F. App'x
349, 350 (4th Cir. 2010).
In fact, Verizon does not contend that Lenfest failed to
meet the requirements of Fed. R. Civ. P. 41(a)(1)(A)(i).
Instead, it argues that before entering the requested dismissal,
the Court should strike the language from Lenfest’s notice that
he is dismissing the action with prejudice in order to seek
immediate review of this Court’s Order compelling arbitration.
This Court is not, however, authorized to strike language
from a notice of voluntary dismissal.

A motion to strike is

brought pursuant to Fed. R. Civ. P. 12(f), which permits a court
to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”

The

First Circuit Court of Appeals has held that Fed. R. Civ. P.
12(f) applies only to “pleadings.” Pilgrim v. Trs. of Tufts
Coll., 118 F.3d 864, 868 (1st Cir. 1997), abrogated on other
grounds by Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir.
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2002).

Pleadings, moreover, are strictly defined by Fed. R.

Civ. P. 7(a) and do not encompass a plaintiff’s notice of
voluntary dismissal.
The Court sees no reason to stray from the plain language
of Fed. R. Civ. P. 12(f), which explicitly limits a motion to
strike particular material to only those filings properly
defined as “pleadings.”

Accordingly, Verizon’s motion to strike

is inapt and will be denied. See Naegele v. Albers, 355 F. Supp.
2d 129, 142-43 (D.D.C. 2005). But see NRDC v. FDA, 884 F. Supp.
2d 108, 115 n.5 (S.D.N.Y. 2010).
The Court’s holding effectively forecloses any necessity to
address the merits of Verizon's motion to strike.

Nevertheless,

the Court proffers two observations thereon.
First, Verizon contends that enabling Lenfest to appeal the
Court’s Order would permit an “end run” around the FAA’s
prohibition of interlocutory appeals of orders staying a case
pending arbitration.

Verizon overlooks, however, that the Court

could have opted to compel arbitration and simultaneously
dismiss the suit outright.

Such a decision would have been a

“final decision with respect to an arbitration” immediately
appealable under 9 U.S.C. § 16(a)(3). See Dialysis Access Ctr.,
LLC v. RMS Lifeline, Inc., 638 F.3d 367, 372-73 (1st Cir. 2011);
Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86–87 (2000).
Plaintiff’s decision to dismiss his suit voluntarily in order to
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seek review of the Court’s ruling to stay the case pending
arbitration accomplishes the same thing, i.e., once the
voluntary dismissal is entered, a final judgment with respect to
arbitration exists and an appeal is no longer barred under
§ 16(b). See Dialysis Access, 638 F.3d at 373.
Second, and more importantly, Lenfest's delay of more than
two months to file his notice of voluntary dismissal runs afoul
of the First Circuit’s established procedure for appealing an
interlocutory order.

In the John’s Insulation decision, the

First Circuit held that “the proper way to appeal an
interlocutory order is to move for a voluntary dismissal with
prejudice.” 156 F.3d at 107.

Moreover, the First Circuit

requires that the party (1) must explicitly state “that the
purpose is to seek immediate review of the interlocutory order
in question” and (2) must file immediately. Scanlon v. M.V.
SUPER SERVANT 3, 429 F.3d 6, 10 (1st Cir. 2005) (citing John’s
Insulation, 156 F.3d at 107).

Lenfest did not file immediately

but instead dragged his feet in complying with the Court’s
ruling, and with his contractual obligation to arbitrate his
claims, for an extended period of time.

Such untimely conduct

should not be condoned.
III. Motion for Leave to File Bill of Costs
Verizon also argues that, as the prevailing party, it is
entitled to recover its costs in defending the case.
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Fed. R. Civ. P. 54(d)(1) states that “costs—other than
attorney’s fees—should be allowed to the prevailing party.”
Multiple courts have held that a defendant is a prevailing party
entitled to recover its costs when the plaintiff dismisses its
case against the defendant with prejudice. See, e.g., Cantrell
v. Int’l Bhd. of Elec. Workers, 69 F.3d 456, 456 (10th Cir.
1995); Zenith Ins. Co. v. Breslaw, 108 F.3d 205, 207 (9th Cir.
1997).

That is because a dismissal with prejudice is tantamount

to a judgment on the merits. Schwarz v. Folloder, 767 F.2d 125,
130 (5th Cir. 1985).
The First Circuit has noted that voluntary dismissals are
often conditioned on payment of the defendant’s costs. P.R.
Maritime Shipping Auth. V. Leith, 668 F.2d 46, 51 (1st Cir.
1981). Imposing such costs on Lenfest is appropriate in this
circumstance.

Verizon was successful in compelling arbitration

as to all of Lenfest’s claims.

Lenfest then chose voluntarily

to dismiss the entire case with prejudice.

Verizon is therefore

the prevailing party entitled to recover its costs associated
with the action.

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ORDER
For the foregoing reasons:
1)

Verizon’s motion to strike and for leave to file a
bill of costs (Docket No. 20) is, to the extent it
seeks leave to file a bill of costs, ALLOWED but, to
the extent it seeks to strike language from
plaintiff’s notice of voluntary dismissal, DENIED.

2)

Defendant may file its bill of costs within 14 days
after the date of this Order.

3)

Pursuant to plaintiff’s notice of voluntary dismissal,
this case is DISMISSED with prejudice.

So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated March 4, 2015

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