Michnovez et al v. Blair, LLC

Filing 77

///ORDER granting 72 Motion for Partial Dismissal with Prejudice; denying as moot 57 Motion to Dismiss. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John Michnovez, individually
and as Executor of the Estate
of Velma Michnovez; and
Susan Michnovez
v.

Civil No. 10-cv-110-LM

Blair, LLC; A-One Textile and
Towel Industries; Bureau Veritas
Consumer Products Services (Pre)
Ltd.; and Bureau Veritas, S.A.

O R D E R
Before the court is a motion filed jointly by the
plaintiffs and two defendants (Bureau Veritas Consumer Products
Services (Pre) Ltd. (“BV Pre”) and Bureau Veritas Consumer
Products Services, Inc.1 (“BV Inc.”), in which those four parties
ask the court to dismiss, with prejudice, plaintiffs’ claims
against all three of the Bureau Veritas defendants originally
named in this case (“the BV defendants”).

Blair, LLC (“Blair”)

objects, asserting that dismissal with prejudice would somehow
jeopardize its ability to pursue claims against any of the BV
defendants that might come to light during the course of
1

BV Inc. was dismissed from this case in an order dated
June 13, 2011, three days before the joint motion was filed.
The dismissal of BV, Inc. has no bearing on any issue now before
the court.

discovery.

Accordingly, Blair asks the court to grant the

motion to dismiss, but without prejudice.

For their part, BV

Pre and BV Inc. argue, in their reply to Blair’s objection, that
dismissal with prejudice is appropriate.
The Federal Rules of Civil Procedure (“Federal Rules”)
provide that “[e]xcept as provided in Rule 41(a)(1), an action
may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper.”
41(a)(2).

Fed. R. Civ. P.

The Federal Rules further provide that “[u]nless the

order states otherwise, a dismissal under this paragraph (2) is
without prejudice.”

Id.

The purpose of Rule 41(a)(2) “is to

permit the plaintiff, with approval of the court . . .
voluntarily to dismiss an action as long as ‘no other party will
be prejudiced.’”

Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160

(1st Cir. 2000) (quoting P.R. Maritime Shipping Auth. v. Leith,
668 F.2d 46, 50 (1st Cir. 1981); citing Grover v. Eli Lilly &
Co., 33 F.3d 716, 718 (6th Cir. 1994)).

Whether or not to grant

a Rule 41(a)(2) motion is committed to the discretion of the
trial court.

See Doe, 216 F.3d at 160 (citing Alamance Indus.,

Inc. v. Filene’s, 291 F.2d 142, 146 (1st Cir. 1961)).
In Doe, the court identified a number of factors that
courts should consider when exercising their discretion under
Rule 41(a)(2).

See 216 F.3d at 160 (quoting Pace v. S. Express

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Co., 409 F.2d 331, 334 (7th Cir. 1969); citing Grover, 33 F.3d
at 718).

But, those factors all pertain to the prejudice that

might be suffered by a defendant if a plaintiff’s claims against
that defendant were to be dismissed.
here.

That is not the situation

The BV defendants that have appeared have joined in

plaintiffs’ motion to dismiss; the objection to plaintiffs’
motion comes from Blair, one of the two defendants that would
remain in the case if plaintiffs’ motion to dismiss were to be
granted.

And, as noted, Blair only objects to dismissal with

prejudice.
The problem is that while Blair asserts that dismissal of
plaintiffs’ claims against the BV defendants, with prejudice,
would jeopardize its own ability to pursue claims against the BV
defendants, Blair fails utterly to develop that legal argument.
Because “[i]t is not the obligation of [the] court to research
and construct the legal arguments open to parties, especially
when they are represented by counsel,” Kauthar SDN BHD v.
Sternberg, 149 F.3d 659, 668 (7th Cir. 1998), a “district court
is free to disregard arguments that are not adequately
developed,” Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d
252, 260 (1st Cir. 1999).

But, still, the court must exercise

its discretion when ruling on the motion before it.
Alamance, 291 F.2d at 146-47.

See

In exercising its discretion, the

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court is guided by Judge Reed’s reasoning in Protocomm Corp. v.
Novell Advanced Servs., Inc., 171 F. Supp. 2d 459 (E.D. Pa.
2001).
In Protocomm, the plaintiff and some but not all of the
defendants moved to dismiss with prejudice all the claims the
plaintiff had brought against those defendants.
at 470.

171 F. Supp. 2d

After pointing out that “[t]he purpose of [Rule

41(a)(2)] is primarily to prevent dismissals which would result
in some clear legal prejudice to the defendant,” id. (citations
omitted), Judge Reed noted that “[w]here a plaintiff moves for a
voluntary dismissal with prejudice ‘it has been held that the
district court must grant that request’” id. at 471 (quoting
Spring City Corp. v. Am. Bldgs. Co., Nos. CIV.A. 97-8127, CIV.A.
98-105, 1999 WL 1212201, at *1 (E.D. Pa. Dec. 17, 1999)); see
also Shepard v. Egan, 767 F. Supp. 1158, 1165 (D. Mass. 1990)
(expressing support for the proposition that the court must
grant a plaintiff’s motion to dismiss his or claims with
prejudice “because ‘when a dismissal with prejudice is granted,
it does not harm the defendant: The defendant receives all that
he would have received had the case been completed’”) (quoting
Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir. 1985)).

Judge

Reed then described the case on which he relied in granting the
motion to dismiss that was before him:

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In Plasterer, the plaintiff filed suit under the
Eighth Amendment against multiple defendants.
Subsequently, the plaintiff and one of the defendants
filed a joint motion to dismiss under Rule 41. The
remaining defendants opposed the motion, arguing that
they would be prejudiced. The court rejected their
argument, noting that (1) no cross claims had been
filed asserting that the moving defendant was wholly
or partially responsible; (2) the remaining defendants
could still avoid liability at trial by arguing that
the moving defendant had been responsible; and (3)
their rights to indemnification and contribution were
unaffected.
Protocomm, 171 F. Supp. 2d at 471 (citing Plasterer v. Hahn, 103
F.R.D. 184, 186 (M.D. Pa. 1984).
Here, as in Protocomm and Plasterer, Blair has filed no
cross claims against any of the BV defendants, which “severely
undercuts” Blair’s claim that it will be prejudiced by dismissal
of those defendants.

See N. Forest Dev. LLC v. Walden Ave.

Realty Assocs., LLC, No. 06-CV-378A, 2008 WL 5245329, at *3
(W.D.N.Y. Dec. 16, 2007) (citing Plasterer, 103 F.R.D. at 186).
Moreover, the BV defendants argue, persuasively, that Blair will
still have an opportunity at trial to apportion fault to other
entities whether they are parties to the case or not, see
DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793, 803
(2006), and that the absence of the BV entities from this case
will not foreclose subsequent indemnification claims, cf. Wood
v. Greaves, 152 N.H. 228, 231 (2005).

Moreover, this is not a

case such as ITV Direct, Inc. v. Healthy Solutions, LLC, 445

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F.3d 66, 70-71 (1st Cir. 2006), in which a Rule 41(a)(2)
dismissal, while benefitting the defendant, would have
substantially prejudiced an intervenor who had claims against
both the plaintiff and the defendant, and whose ability to
recover was based entirely upon the defendant’s ability to
recover from the plaintiff on its counterclaims.

In sum, given

Blair’s failure to make any kind of legal argument, and the
persuasive arguments advanced by BV Pre and BV Inc., the court
can see no good reason for granting the BV defendants any less
relief than plaintiffs are willing to offer them.

Accordingly,

the joint motion to dismiss with prejudice, doc. no. 72, is
granted.

Given that disposition, BV Pre’s pending motion to

dismiss, doc. no. 57, is denied as moot.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
August 22, 2011
cc: David P. Angueira, Esq.
Eric K. Blumenfeld, Esq.
Alan L. Cantor, Esq.
Joel Thomas Emlen, Esq.
Dona Feeney, Esq.
Bruce W. Felmly, Esq.
James C. Fitzpatrick, Esq.
D. Patterson Gloor, Esq.
Thomas V.H. Mayer, Esq.
Steven M. Shear, Esq.
Edward M. Swartz, Esq.
Jori L. Young, Esq.

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