Dejana et al v. Marine Technology, Inc. et al

Filing 15

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiffs' Motion To Dismiss Without Prejudice (Doc. #10) is granted. IT IS FURTHER ORDERED that this cause is hereby dismissed without prejudice. IT IS FURTHER ORDERED th at defendants' Motion to Consolidate (Doc. #7) and Amended Motion to Consolidate (Doc. #8) are denied as moot. IT IS FURTHER ORDERED that plaintiffs' Motion to Stay Defendants' Motion to Consolidate (Doc. #9) is denied as moot. IT IS FURTHER ORDERED that the Clerk of Court shall cause a copy of this Memorandum and Order to be filed and docketed in Dejana,et al. v. Marine Tech., Inc., et al., Cause No. 4:11CV1690 JAR. denying 7 Motion to Consolidate Cases; denying 8 Motion to Consolidate Cases; denying 9 Motion to Stay; granting 10 Motion to Dismiss Case Signed by Magistrate Judge Frederick R. Buckles on 1/11/2012. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LINDA DEJANA, as Personal
Representative of the Estate of
Philip Dejana, Deceased, et al.,
Plaintiffs,
v.
MARINE TECHNOLOGY, INC., et al.,
Defendants.

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No.

4:11CV1457 FRB

MEMORANDUM AND ORDER
Presently pending before the Court is plaintiffs’ Motion
to Dismiss Without Prejudice (Doc. #10).

All matters are pending

before the undersigned United States Magistrate Judge, with consent
of the parties, pursuant to 28 U.S.C. § 636(c).
This products liability/wrongful death action arises out
of a fatal powerboat accident which occurred on August 24, 2008, in
the Great South Bay off of Long Island, New York, and resulted in
the deaths of Philip Dejana and Kevin Graff.

Invoking federal

diversity and admiralty jurisdiction, plaintiffs filed the instant
Complaint in this Court on August 22, 2011.

28 U.S.C. §§ 1332,

1333. Plaintiffs Linda Dejana and William T. Graff are citizens of
the State of New York and each act as personal representative of
the respective estates of decedents Philip Dejana and Kevin Graff.
The named defendants in this action are Missouri residents Marine
Technology, Inc., and Randy M. Scism.

Prior to the institution of the instant cause of action,
and specifically in September 2010, plaintiffs filed a separate,
but identical, products liability/wrongful death action against the
same named defendants in the United States District Court, Eastern
District

of

New

York

(“the

EDNY

case”).

In

February

2011,

defendants filed a motion to dismiss in that cause for lack of
personal jurisdiction, and that motion remained pending before the
district court in New York at the time the instant cause of action
was filed in this Court in August 2011.

In their instant Motion to

Dismiss Without Prejudice, plaintiffs aver that they filed the
instant cause of action in this Court “solely to protect their
claim from a statute of limitations bar” in the event the district
court in New York dismissed the EDNY case with prejudice. (Pltfs.’
Memo. in Supp., Doc. #11 at p.3.)
On September 26, 2011, subsequent to the filing of the
instant cause of action in this Court and prior to the effectuation
of service on the defendants, the district court in New York
determined that it did not have personal jurisdiction over the
defendants in the EDNY case.

Rather than dismiss the case,

however, the district court determined to transfer the action to
the Eastern District of Missouri pursuant to 28 U.S.C. § 1406(a),
finding

there

to

be

a

compelling

reason

for

transfer,

and

specifically, that the statute of limitations had likely run on
plaintiffs’ claims.

The action was thereafter transferred to this

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district and is currently pending before United States District
Judge John A. Ross.

See Dejana, et al. v. Marine Tech., Inc., et

al., No. 4:11CV1690 JAR (E.D. Mo. 2011) (“the 1690 action”).
Thereafter, on November 1, 2011, defendants entered their
appearance in the instant cause of action, filed an Answer, and
moved that the 1690 action be consolidated into this cause.

Citing

Local Rule 4.03,1 defendants requested that upon consolidating the
1690 action into this cause, the 1690 action be dismissed.

On

November 4, 2011, plaintiffs filed the instant Motion to Dismiss
Without Prejudice, requesting that the instant cause be dismissed
and that the 1690 action be allowed to proceed inasmuch as “[i]n
Case 1690, the parties have exchanged a Complaint and Answer,
exchanged documents, and agreed to a scheduling order.

In Case

1690, the parties are ready to proceed with additional written
discovery, physical inspections, and depositions. There is no such
progress in Case 1457[.]”
p.4.)

(Pltfs.’ Memo. in Supp., Doc. #11 at

In response, defendants argue that they would be prejudiced

by such a dismissal inasmuch as they have already filed an Answer
1

Local Rule 4.03 provides:

A party desiring the consolidation of related cases shall
file a motion in the case bearing the lowest cause
number. . . . The district or magistrate judge presiding
in the lowest-numbered case shall rule on the motion. If
the motion is granted, the consolidated cases shall be
reassigned to the judge presiding in the lowest-numbered
case. Following consolidation, all documents shall be
filed only in the lowest-numbered case, unless otherwise
ordered by the Court.
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in the cause.

Defendants further contend that the case should

proceed pursuant to the procedures set out in Local Rule 4.03
governing consolidation.
Once an answer or a motion for summary judgment has been
filed in an action, a plaintiff may voluntarily dismiss the action
without prejudice only upon order of the court and upon such terms
as the court deems proper.

Fed. R. Civ. P. 41(a).

A decision

whether to allow a party to voluntarily dismiss a case rests upon
the sound discretion of the court.

Hamm v. Rhone-Poulenc Rorer

Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999).

“In exercising

that discretion, a court should consider factors such as whether
the party has presented a proper explanation for its desire to
dismiss, whether a dismissal would result in a waste of judicial
time

and

effort,

defendants.”
In

and

whether

a

dismissal

will

prejudice

the

Id. (citations omitted).
this

cause,

plaintiffs’

explanation

for

seeking

dismissal of this action is well supported and provides a proper
basis upon which to discontinue this action and to proceed with the
originally filed action, now pending for sixteen months. Comparing
the status of the proceedings between this action and the 1690
action, the undersigned is of the opinion that it would be a waste
of judicial time and effort not to dismiss this action and to
essentially begin anew in this cause.
failed

to

show

that

they

would

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Finally, defendants have

suffer

any

prejudice

by

the

dismissal of this action.
instant

cause

has

been

Given the brief period of time the
pending

and

the

lack

of

significant

commitment of time and money expended, the undersigned finds that
defendants will not be prejudiced by the dismissal of this cause
Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S.

without prejudice.

384, 397 (1990) (observing that Rule 41(a)(1) allows plaintiffs to
voluntarily dismiss without prejudice “only during the brief period
before the defendant had made a significant commitment of time and
money.”).
Therefore, the Court determines in its discretion that
dismissal of the instant cause of action without prejudice is
appropriate. In addition, upon review of the present circumstances
of the case, the Court determines that terms of dismissal need not
be imposed.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ Motion to Dismiss
Without Prejudice (Doc. #10) is granted.
IT IS FURTHER ORDERED that this cause is hereby dismissed
without prejudice.
IT

IS

FURTHER

ORDERED

that

defendants’

Motion

to

Consolidate (Doc. #7) and Amended Motion to Consolidate (Doc. #8)
are denied as moot.
IT IS FURTHER ORDERED that plaintiffs’ Motion to Stay
Defendants’ Motion to Consolidate (Doc. #9) is denied as moot.

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IT IS FURTHER ORDERED that the Clerk of Court shall cause
a copy of this Memorandum and Order to be filed and docketed in
Dejana, et al. v. Marine Tech., Inc., et al., Cause No. 4:11CV1690
JAR.

UNITED STATES MAGISTRATE JUDGE

Dated this

11th

day of January, 2012.

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