State Farm Fire and Casualty Company v. Interline Brands, Inc. et al
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - IT IS ORDERED that: State Farm's motion to dismiss, (ECF No. 25 ), is granted in part. State Farm's claims agains t Interline Brands, Inc. and Linx Ltd. are dismissed without prejudice, subject to the condition set forth in the memorandum accompanying this order. Interline Brands, Inc.'s and Linx Ltd.'s motion for summary judgment, (ECF No. 22 ), is denied as moot. Ordered by Senior Judge Warren K. Urbom. (TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STATE FARM FIRE AND
CASUALTY COMPANY, as
INTERLINE BRANDS, INC., LINX
LTD., and WATTS WATER
MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION FOR
VOLUNTARY DISMISSAL AND
DEFENDANTS’ MOTION FOR
State Farm Fire and Casualty Company a/s/o James Langtry (State Farm) filed
a two-count complaint against Interline Brands, Inc. (Interline), Watts Water
Technologies, Inc. (Watts Water Technologies), and Linx Ltd. (Linx) on or about
January 22, 2013. (See Notice of Removal, Ex. A, Compl., ECF No. 1-1.) Acting
jointly, Interline and Linx filed an answer to the complaint on March 1, 2013, (ECF
No. 8), and a motion for summary judgment on April 30, 2013, (ECF No. 22). On
May 23, 2013, State Farm filed a “Motion to Dismiss Specific Defendants Without
Prejudice.” (ECF No. 25.) This motion contains a single substantive paragraph
COME [sic] NOW the Plaintiff . . . and hereby dismisses the
above cause of action without prejudice with regard to Interline Brands,
Inc. and Linx Ltd.
This Dismissal shall not be construed as an
admission against any interests of the Plaintiff herein and its cause of
action will continue forward as to the remaining Defendant.
(Id. (emphasis omitted).) State Farm did not file a brief in support of its motion, and
it has not otherwise responded to Interline’s and Linx’s motion for summary
In response to State Farm’s motion to dismiss, Interline and Linx argue that
State Farm cannot dismiss its claims against them without a court order, and that the
dismissal should be with prejudice. (Defs.’ Response at 1, ECF No. 26.) They add
that as an alternative to dismissal with prejudice, I should include in the order of
dismissal “a finding that Plaintiff is to pay all of the attorney fees and costs incurred
by Defendants Interline Brands, Inc. and Linx Ltd. in the present action if Plaintiff
brings another action against either or both Interline Brands, Inc. and Linx Ltd. based
on or including the same claim against these Defendants and to stay any new
proceedings until the plaintiff has complied pursuant to Federal Rule of Civil
Procedure 41(d).” (Id. at 2.) Interline and Linx do not state the amount of the fees
and costs that they have incurred in this action, however.
“Federal Rule of Civil Procedure 41(a) provides for the voluntary dismissal of
actions at the plaintiff's request.” Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir.
1995). In certain circumstances, a plaintiff may dismiss its action without a court
order under Rule 41(a)(1)(A). In the instant case, however, Interline and Linx have
already served an answer and a motion for summary judgment, and the parties have
not all signed a stipulation of dismissal. Thus, State Farm must obtain an order of
dismissal under Rule 41(a)(2). See Fed. R. Civ. P. 41(a)(1)(A), (2).
“The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals
which unfairly affect the other side.” Paulucci v. City of Duluth, 826 F.2d 780, 782
(8th Cir. 1987). When determining whether to grant a Rule 41(a)(2) motion, a court
should consider the plaintiff’s explanation for the need to take a dismissal, the effort
and expense put forth by the defendants in preparing for trial, whether there has been
excessive delay and a lack of diligence on the part of the plaintiff in prosecuting the
case, and whether the defendants have filed a motion for summary judgment.
Paulucci, 826 F.2d at 783. See also Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.
1998). “Courts generally will grant dismissals where the only prejudice the defendant
will suffer is that resulting from a subsequent lawsuit.” Paulucci, 826 F.2d at 782.
“Under Rule 41(a)(2), dismissals sought by the plaintiff are without prejudice
unless the district court's order specifies otherwise.” Jaramillo, 59 F.3d at 79. “Thus,
Rule 41(a)(2) implicitly permits the district court to dismiss an action with prejudice
in response to a plaintiff’s motion for dismissal without prejudice.” Id. (citations
omitted). “When a plaintiff requests dismissal without prejudice and the district court
intends to dismiss with prejudice, however, the district court must give the plaintiff
notice of its intention and a chance to withdraw the request and proceed with
litigation.” Id. (citations omitted). “Otherwise, the district court would deny the
plaintiff the option of trying the case on the merits, because unlike a dismissal
without prejudice, a dismissal with prejudice operates as a rejection of the plaintiff's
claims on the merits and res judicata precludes further litigation.” Id. (citation
“In granting a motion for voluntary dismissal, district courts typically impose
the condition that [the] plaintiff pay the defendant the reasonable attorney’s fees
incurred in defending the suit.” Belle-Midwest, Inc. v. Missouri Property & Casualty
Insurance Guarantee Association, 56 F.3d 977, 978-79 (8th Cir. 1995). Moreover,
“under certain circumstances, it is an abuse of discretion for a district court not to
condition a voluntary dismissal upon [the] plaintiff’s payment of costs and attorney’s
fees if the case is refiled.” Id. (citing Kern v. TXO Production Corp., 738 F.2d 968,
972 (8th Cir. 1984)).
After due consideration, I find that State Farm’s claims against Interline and
Linx should be dismissed without prejudice on the following condition: State Farm
must pay the attorney’s fees and costs reasonably incurred by Interline in defending
this action before either or both of its claims may be refiled against Interline;
similarly State Farm must pay the attorney’s fees and costs reasonably incurred by
Linx in defending this action before either or both of its claims may be refiled against
Linx. The particular sum (or sums) owed will be determined in accordance with this
court’s local rules and other applicable law after Interline and/or Linx files an
application for the award. See, e.g., NECivR 54.3 and 54.4. Failure to file a prompt
application may be deemed a waiver of the condition of dismissal.
IT IS ORDERED that:
State Farm’s motion to dismiss, (ECF No. 25), is granted in part. State
Farm’s claims against Interline Brands, Inc. and Linx Ltd. are dismissed
without prejudice, subject to the condition set forth in the memorandum
accompanying this order.
Interline Brands, Inc.’s and Linx Ltd.’s motion for summary judgment,
(ECF No. 22), is denied as moot.
Dated July 3, 2013.
BY THE COURT
Warren K. Urbom
United States Senior District Judge
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