Lambert Vet Supply, LLC v. Martin et al
MEMORANDUM AND ORDER that Defendants' Motion to Dismiss (filing 21) is denied. Defendants' Motion for Costs and Attorneys' Fees and to Stay the Proceedings Under Federal Rule of Civil Procedure 41(d) (filing 19) is denied. Ordered by Judge John M. Gerrard. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAMBERT VET SUPPLY, LLC,
MEMORANDUM AND ORDER
CHRIS MARTIN, et al.,
This matter is before the Court on Defendants' Motion to Dismiss
(filing 21) and Defendants' Motion for Costs and Attorneys' Fees and to Stay
the Proceedings Under Federal Rule of Civil Procedure 41(d) (filing 19). Both
motions will be denied.
This case is not the first between these parties. The plaintiff first sued
the defendants in state court on January 6, 2014, pleading several claims for
relief arising out of the alleged sale, by the defendants, of counterfeit
veterinary products that had been seized from the plaintiff by U.S. Customs
and Border Protection. Case No. 8:14-cv-45 filing 1-1. The defendants moved
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and the plaintiff filed an
amended complaint pleading a single claim for relief: breach of contract. Case
No. 8:14-cv-45 filings 21 and 23. The defendants filed another motion to
dismiss pursuant to Rule 12(b)(6), for the first time arguing that the
plaintiff's contract claim should be dismissed for failing to allege the pre-suit
notice that is, according to the defendants, required by the Nebraska U.C.C.
See Case No. 8:14-cv-45 filing 25.1
In response, the plaintiff filed a notice of case dismissal without
prejudice, and Case No. 8:14-cv-45 was dismissed without prejudice pursuant
to Fed. R. Civ. P. 41(a)(1). Case No. 8:14-cv-45 filings 27 and 28. Two days
later, this case was filed. Filing 1. In its new complaint, the plaintiff pleads
claims for relief for breach of contract and breach of warranty. Filing 1. And
Interestingly, while the defendants asked for dismissal of the contract claim in their brief
(Case No. 8:14-cv-45 filing 25), they failed to do so in their motion (Case No. 8:14-cv-45
filing 24). Even more telling is the fact that the defendants failed to complain about
notice—or the contract claim at all—in their first motion to dismiss. See Case No. 8:14-cv45 filings 21 and 22.
this time, the plaintiff alleges that the day before filing the complaint,
"Plaintiff gave written notice to Defendants that it considered Defendants'
sale of defective goods to Plaintiff as a breach of the contract and warranties."
Filing 1 at 3.
The defendants moved for costs and fees and to stay the proceedings
pursuant to Fed. R. Civ. P. 41(d), which provides that
[i]f a plaintiff who previously dismissed an action in any court
files an action based on or including the same claim against the
same defendant, the court:
(1) may order the plaintiff to pay all or part of the
costs of that previous action; and
(2) may stay the proceedings until the plaintiff has
See filing 19. The defendants also moved to dismiss for failure to state a claim
upon which relief may be granted, arguing that the plaintiff still hasn't pled
compliance with the notice provisions of the Nebraska U.C.C. Filing 22.
The Court begins with the defendants' motion to dismiss. A complaint
must set forth a short and plain statement of the claim showing that the
pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This standard does not
require detailed factual allegations, but it demands more than an unadorned
accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And to survive a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also
contain sufficient factual matter, accepted as true, to state a claim for relief
that is plausible on its face. Iqbal, 556 U.S. at 678.
But the important rule here isn't Rule 12—it is, instead, Rule 41(a)(1),
because the defendants' argument isn't that the plaintiff didn't provide notice
before filing the present suit.2 Instead, the defendants argue that the
plaintiff's complaint in this case is deficient because it does not allege that
notice was provided before the plaintiff filed the previous action that was
voluntarily dismissed. See filing 22.
The defendants cite no authority for the proposition that the plaintiff
could not provide pre-suit notice in this case because it failed to do so in a
The parties dispute, in some detail, under what provisions notice is or isn't required, and
whether a lawsuit itself—either one, in this instance—can serve as effective notice. But the
Court need not consider those matters to resolve the present motion.
previous case, and with good reason: such a proposition would be inconsistent
with the well-understood effect of a Rule 41(a)(1) dismissal. The effect of a
voluntary dismissal without prejudice pursuant to Rule 41(a) is to render the
proceedings a nullity and leave the parties as if the action had never been
brought. Williams v. Clarke, 82 F.3d 270, 273 (8th Cir. 1996); Norman v. Ark.
Dep't of Educ., 79 F.3d 748, 751 (8th Cir. 1996); In re Piper Aircraft
Distribution Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir. 1977). It carries
down with it previous proceedings and orders in the action, and all pleadings,
both of plaintiff and defendant, and all issues, with respect to plaintiff's
claim. Piper Aircraft, 551 F.2d at 219.
The Eighth Circuit's reasoning is clear, and clearly applies here: Case
No. 8:14-cv-45 never happened. (Except for Rule 41(d) purposes, which will be
discussed in a moment.) Whether the plaintiff provided pre-suit notice for
purposes of this case rises and falls with whether notice was timely provided
before the initiation of this case. And the plaintiff has at least alleged it has.3
So, the Court will deny the defendants' motion to dismiss.
The other question before the Court is whether to assess costs and fees
pursuant to Rule 41(d), based on the plaintiff's voluntary dismissal of a case
containing the same claim. An award of costs under Rule 41(d) is intended to
deter forum shopping and vexatious litigation. See, Simeone v. First Bank
Nat'l Ass'n, 971 F.2d 103, 108 (8th Cir. 1992); Siepel v. Bank of Am., N.A.,
239 F.R.D. 558, 563 (E.D. Mo. 2006); see also Kent v. Bank of Am, N.A., 518 F.
App'x 514, 516-17 (8th Cir. 2013). No showing of bad faith is required. Kent,
518 F. App'x at 517; Siepel, 239 F.R.D. at 563. Rather, the moving party need
only establish that: (1) a plaintiff's previous action was dismissed; (2) a
second action was commenced that is based upon or includes the same claim
against the same defendant; and (3) there are costs and attorney fees
incurred by the defendant in the prior action that will not be useful in the
newly-filed litigation. Fed. R. Civ. P. 41(d); Siepel, 239 F.R.D. at 563.
Rule 41(d) provides that the Court may award costs, but it is not
required. The Court recognizes that it has the discretion to award costs here.
See Kent, 518 F. App'x at 516. But there is nothing to suggest forum shopping
The defendants imply, in a footnote, that the plaintiff's allegation is still insufficient
because it does not use the words "revoke" or "revocation," and they contend that the
plaintiff is required to revoke its acceptance of the goods before bringing suit. Filing 22 at
11 n.3. The Court will answer their footnote with this one: the Court finds that the
plaintiff's allegation of pre-suit notice to the defendants is sufficient to state a claim for
relief. The defendants also suggest in passing that the plaintiff's complaint leaves "a
multitude of unanswered questions" for the defendants. Filing 22 at 14. The Court finds
that the plaintiff's complaint is a short and plain statement of its claims for relief, sufficient
to meet the requirements of Rule 8.
or vexatious litigation here. Rather, there is an obvious strategy at work: the
plaintiff sought to avoid litigation over pre-suit notice by providing it.4 A bit
creative, to be sure—but hardly the sort of improper purpose that the Court
would find to warrant sanctions. Compare Kent, 518 F. App'x at 516-17. The
Court will deny the defendants' Rule 41(d) motion.
IT IS ORDERED:
Defendants' Motion to Dismiss (filing 21) is denied.
Defendants' Motion for Costs and Attorneys' Fees and to
Stay the Proceedings Under Federal Rule of Civil
Procedure 41(d) (filing 19) is denied.
Dated this 31st day of March, 2015.
BY THE COURT:
John M. Gerrard
United States District Judge
Unsuccessfully, as it turned out, but it wasn't an irrational strategy.
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