Hemphill Construction Company et al v. Aeromix Systems Inc.

Filing 31

ORDER denying as moot 21 Motion for Judgment on the Pleadings; granting 23 Motion to Voluntarily Dismiss; granting 24 Motion to Voluntarily Dismiss. Signed by District Judge Halil S. Ozerden on 6/28/18. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
HEMPHILL CONSTRUCTION
COMPANY, INC. and JACKSON
COUNTY UTILITY AUTHORITY
v.
AEROMIX SYSTEMS INC. d/b/a
RWL Water

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PLAINTIFFS

Civil No. 1:18cv32-HSO-JCG

DEFENDANT

ORDER GRANTING PLAINTIFFS’ [23], [24] MOTIONS FOR VOLUNTARY
DISMISSAL WITHOUT PREJUDICE, AND DENYING AS MOOT
DEFENDANT’S [21] MOTION FOR JUDGMENT ON THE PLEADINGS
BEFORE THE COURT are the following Motions: (1) Motion [21] for
Judgment on the Pleadings filed by Defendant Aeromix Systems, Inc.; (2) Motion
[23] for Voluntary Dismissal Without Prejudice filed by Plaintiff Hemphill
Construction Company, Inc.; and (3) Motion [24] for Voluntary Dismissal Without
Prejudice filed by Plaintiff Jackson County Utility Authority.

Defendant has filed

a Response [27] in opposition to Plaintiffs’ Motions [23], [24], and Hemphill has filed
a Reply [28].

After due consideration of the record and relevant legal authority,

the Court finds that Plaintiffs’ Motions [23], [24] should be granted and that this
case should be dismissed without prejudice. Defendant’s Motion [21] for Judgment
on the Pleadings is moot.

I. BACKGROUND
Plaintiffs filed a Complaint [1] in this Court on January 31, 2018, invoking
diversity jurisdiction under 28 U.S.C. § 1332. See Compl. [1] at 1.

According to

Plaintiffs, they have since discovered that they must assert a negligence claim
against a non-diverse defendant, who if joined in this action would destroy diversity
jurisdiction. See Mot. [23] at 1-2.

At least one of Plaintiffs has initiated a

separate suit against this non-diverse party and Defendant Aeromix Systems, Inc.,
in state court. See id. at 2 n.3. Plaintiffs now ask this Court to voluntarily
dismiss this case without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(2), which provides in relevant part that “an action may be dismissed at the
plaintiff’s request only by court order, on the terms that the court considers proper.”
Fed. R. Civ. P. 41(a)(2).
Defendant responds that Rule 41(a)(2) is not the applicable standard under
the facts and circumstances presented here.

Resp. [27] at 2. According to

Defendant, if a motion to dismiss stems from a lack of subject-matter jurisdiction
based upon a plaintiff’s failure to join a non-diverse, indispensable party, the motion
should be treated as a motion to dismiss for lack of subject-matter jurisdiction. Id.
(citing Weichman v. Northeast Inns of Meridian, Inc., 125 F.R.D. 139, 141 (S.D.
Miss. 1989)). Defendant, however, argues that Plaintiffs have not sufficiently
articulated why the non-diverse party, Compton Engineering, Inc., is an
indispensable party to this action, such that Plaintiffs’ Motions [23], [24] should be
denied. Id. at 2-3.

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II.

DISCUSSION

The Court need not resolve Defendant’s argument as to which standard
applies under the facts of this case.1

Under either Rule 12(h)(3) or Rule 41(a)(2),

the result in the present case is a dismissal without prejudice.
According to the United States Court of Appeals for the Fifth Circuit, “as a
general rule, motions for voluntary dismissal should be freely granted unless the
non-moving party will suffer some plain legal prejudice other than the mere
prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317
(5th Cir. 2002).

When faced with a Rule 41(a)(2) motion, a district court should

first ask “whether an unconditional dismissal will cause the non-movant to suffer
plain legal prejudice.” Id.

The mere fact that additional expense will be incurred

in relitigating issues in a different forum will not generally support a finding of
“plain legal prejudice” and will not justify the denial of a motion to voluntarily
dismiss under Rule 41(a)(2). Id. at 317 n.3.

If the non-movant will not suffer

plain legal prejudice, a court should generally grant the motion absent some
evidence of abuse by the movant. Id. at 317.

Under Rule 12(h)(3), “[i]f the court

determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
This case is at a very early stage of the litigation.

The parties have only

In Weichman, the district court was called upon to resolve this question because the issue
was whether the district court could award the defendants all expenses, including
attorney’s fees, and the result was different depending on the rule that applied. See
Weichman, 125 F.R.D. at 141. Weichman is therefore distinguishable; no party has asked
for expenses in briefing the present Motions.

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recently served their initial disclosures, and the trial is not scheduled to take place
until August 2019.

It does not appear that Defendant will suffer any plain legal

prejudice if this case is dismissed without prejudice, nor is there any evidence of
abuse by Plaintiffs. The Court will grant Plaintiffs’ Motions [23], [24] and dismiss
this case without prejudice.
III.

CONCLUSION

To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result.
Plaintiffs’ Motions [23], [24] to Dismiss without prejudice will be granted, and
Defendant’s Motion for Judgment on the Pleadings will be denied as moot.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiffs’
Motions [23], [24] for Voluntary Dismissal Without Prejudice are GRANTED, and
this civil action is DISMISSED WITHOUT PREJUDICE.

A separate final

judgment will be entered pursuant to Federal Rule of Civil Procedure 58.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant’s
Motion [21] for Judgment on the Pleadings is DENIED AS MOOT.
SO ORDERED AND ADJUDGED, this the 28th day of June, 2018.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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