WILSON et al v. CONSOLIDATED RAIL CORPORATION et al

Filing 108

OPINION. Signed by Judge Robert B. Kugler on 3/13/15. (dd, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____________________________________
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IN RE PAULSBORO
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DERAILMENT CASES
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Master Docket No. 13-784 (RBK/KMW)
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(Doc. Nos. 575, 600)
:
:
:
:
:
____________________________________ :
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KATHLEEN A. POLLICINO, et al.
:
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Plaintiffs
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Civil No. 12-7648 (RBK/KMW)
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(Doc. No. 72)
v.
:
:
CONSOLIDATED RAIL
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CORPORATION, et al.
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Defendants.
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____________________________________ :
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DONALD WILSON, et al.
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Plaintiffs
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Civil No. 12-7586 (RBK/KMW)
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(Doc. No. 96)
v.
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:
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OPINION
CONSOLIDATED RAIL
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CORPORATION, et al.
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Defendants.
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____________________________________ :

1

KUGLER, United States District Judge:
Before the Court is the motion of Defendants CSX Transportation, Inc., Norfolk Southern
Railway Company, and Consolidated Rail Corporation (collectively “Defendants”) to vacate the
notices of dismissal made by Plaintiffs Donald Wilson, Mishon Wilson, Alvera Blanding
Robinson, Juan Serey, and Nicole Williams (collectively “Plaintiffs”) pursuant to Federal Rule
of Civil Procedure 41(a)(1), (Civ. No. 13-784 (“Master Docket”), Doc. No. 575), and the crossmotion of Plaintiffs to dismiss pursuant to Federal Rule of Civil Procedure 41(a)(2), (Doc. No.
600).1 For the reasons expressed below, Defendants’ motion to vacate is granted, and Plaintiffs’
motion to dismiss is granted.
I. BACKGROUND AND PROCEDURAL HISTORY
On November 30, 2012, a train derailed as it crossed over a bridge that passes over
Mantua Creek in Paulsboro, New Jersey. (Second Consolidated Class Action Amended
Complaint (“SAC”) ¶ 13.) Defendants owned and operated the train involved in the derailment,
and also owned and maintained the bridge over Mantua Creek. (Id.) The bridge is a “swing
bridge” which may be manipulated to either allow watercraft to pass through along the creek, or,
conversely, to permit rail traffic to proceed over the bridge. (Id. ¶ 15.) The train crew allegedly
disregarded a signal indicating that the bridge was not properly locked in place to safely
accommodate rail traffic. (Id. ¶ 25.) As a result of the derailment, four tank cars fell off the
bridge into Mantua Creek. (Id. ¶ 28.) At that time, at least one of the derailed tank cars was
carrying vinyl chloride or other “dangerous substances.” (Id. ¶ 30.) As a result, vinyl chloride
was released from the railcar into both the water and the atmosphere. (Id. ¶ 30.) Shortly
thereafter, the surrounding area became contaminated with airborne chemicals. (Id. ¶ 31.) Many

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Unless otherwise noted, all citations to the docket refer to the Master Docket, Civ. No. 13-784.
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of those living or located in the surrounding areas were instructed to either evacuate or to
“shelter in place.” (Id. ¶ 39.) The initial mandatory evacuation zone encompassed a twelveblock area. (Id. ¶¶ 40, 41.) On December 4, 2012, the evacuation order was expanded to include
an additional 100 homes. (Id.) Other residents outside the mandatory evacuation zone, but still
deemed to be in dangerously close proximity to the accident site, were instructed to remain in
their homes and seal all doors and windows until it was deemed safe to do otherwise. (Id. ¶ 42.)
Plaintiff Donald Wilson initiated a putative class action lawsuit eleven days after the
derailment, asserting theories of negligence and recklessness against Defendants. (See Civ. No.
12-7586.) Other plaintiffs also filed putative class actions shortly thereafter, including Nicole
Williams. (See Civ. No. 12-7648; see also Civ. Nos. 13-410, 13-721, 13-761.) These cases were
later consolidated, and Plaintiffs filed a consolidated class action complaint, which was amended
on June 13, 2013. (Doc. Nos. 59, 78.) In the SAC, the only named plaintiffs are Donald Wilson,
individually and doing business as Don’s Barbershop, and Tracy Lee. (SAC. ¶ 2.) Defendants
filed a motion to dismiss certain counts of the SAC, (Doc. No. 79), which was granted in part
and denied in part on October 4, 2013, (Doc. No. 172.) Defendants filed Answers to the SAC on
November 8, 2013. (Doc. Nos. 242, 243, 244.) On August 20, 2014, this Court denied
Plaintiffs’ motion to certify class. (Doc. No. 506.)
On November 19, 2014, the following Plaintiffs filed notices of voluntary dismissal
pursuant to Fed. R. Civ. P. 41(a)(1): Don Wilson, d/b/a/ Don’s Barbershop; Juan Surey; Alvera
Blanding Robinson; Mishon Wilson; Donald Wilson; and Nicole Williams (Doc. Nos. 548, 549,
550, 551, 552, 553.) The parties were administratively terminated that day. On November 6,
2014, Alvera Blanding Robinson and Nicole Williams joined the “In Re Residents’ Eighth Train
Derailment Complaint,” filed in the Superior Court of New Jersey, Gloucester County. (Ex. A to

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Def. Mtn.) On November 26, 2014, Donald Wilson, Mishon Wilson, and Juan Serey joined the
“In Re Residents’ Ninth Train Derailment Complaint,” filed in the Superior Court of New Jersey,
Gloucester County. (Ex. B. to Def. Mtn.) Defendants filed the instant motion to vacate
Plaintiffs’ notices of voluntary dismissal on December 22, 2014.2 (Doc. No. 575.) Plaintiffs
filed an opposition to the motion to vacate,3 and a cross-motion to dismiss pursuant to Fed. R.
Civ. P. 41(a)(2). (Doc. No. 600.)
II. DISCUSSION
A. Dismissal Under Rule 41(a)(1)
Under Rule 41, a plaintiff may dismiss an action without a court order by filing a notice
of dismissal “before the opposing party serves an answer or files a motion for summary
judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). If the defendant has filed an answer or a motion for
summary judgment, “an action may be dismissed at the plaintiff’s request only by court order, on
terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
Plaintiffs’ notices of voluntary dismissal were improper as they failed to comply with the
requirements of Fed. R. Civ. P. 41(a)(1). Once the Defendants answered Plaintiffs’ SAC on
November 8, 2013, Rule 41(a)(2) then required that Plaintiffs file a motion and seek court
approval to voluntarily dismiss their claims. Plaintiffs argue that, with the exception of Donald
Wilson, because the individuals that have sought to voluntarily dismiss their claims were not
named as plaintiffs in the SAC, Defendants never served an answer as to them.4 As such,
Plaintiffs contend that they submitted their notices of dismissal before an answer or motion for

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Defendants do not seek to vacate the voluntary dismissal of Plaintiff Don Wilson, d/b/a/ Don’s Barbershop.

3

Although Plaintiff Donald Wilson filed a notice of voluntary dismissal on November 19, 2014, (Doc. No. 552), he
only seeks dismissal pursuant to Fed. R. Civ. P. 41(a)(2). (Pl. Br. 1 n.1.)
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See Note 3, supra.
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summary judgment was filed, in compliance with Rule 41(a)(1). However, Plaintiffs’
Complaints were consolidated in the SAC, and therefore, this Court finds that Defendants’
Answers are applicable to all Plaintiffs involved in the present matter, regardless of whether they
were named as class representatives.5
B. Dismissal Under Rule 41(a)(2)
Whether a Rule 41(a)(2) dismissal should be granted is within the sound discretion of the
court. Quality Improvement Consultants, Inc. v. Williams, 129 Fed. App'x 719, 722 (3d Cir.
2005) (citing Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir. 1974)). “Generally, a motion for
dismissal should not be denied absent substantial prejudice to the defendant.” Sporn v. Ocean
Colony Condo. Ass'n, 173 F. Supp. 2d 244, 255 (D.N.J. 2001) (internal quotation marks
omitted). Courts in this district have considered a variety of factors when ruling on a motion to
voluntarily dismiss under Rule 41, including, “(1) the expense of a second litigation; (2) the
effort and expense incurred by defendant in preparing for trial in the current case; (3) the extent
to which the case is progressing; and (4) plaintiff's diligence in bringing the motion to dismiss.”
Assadourian v. Harb, No. 06–896, 2009 WL 2424704, at *2 (D.N.J. Aug. 6, 2009) (citing Sporn,
173 F. Supp. 2d at 255). Additionally, Rule 41 motions “should be allowed unless defendant
will suffer some prejudice other than the mere prospect of a second lawsuit.” In re Paoli R.R.
Yard PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990); see also Environ Prods., Inc. v. Total
Containment, Inc., No. 94-7118, 1995 WL 459003, at *5 (E.D. Pa. July 31, 1995) (“Plain legal

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The Court notes that, in consolidating the Paulsboro cases, the docket has not been a model of clarity. For
example, Plaintiffs’ notices of dismissal appear only on the Master Docket, and not on the individual case dockets.
Likewise, the attorneys’ actions have been somewhat sloppy. For example, in the SAC, Plaintiff Nicole Williams’s
case, Civ. No. 12-7648, is not listed in the caption. However, Nicole Williams joined the motion to certify class,
(Civ. No. 12-7648, Doc. No. 39), and has been treated as a consolidated party by this Court. (See Opinion denying
class certification, Doc. No. 506.) Though admittedly confusing and cumbersome to make sense of the dockets, the
Court nonetheless must rely upon the actual documents that have been filed, and not their labels, to make its
determination.
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prejudice simply does not result … when plaintiff may gain some tactical advantage by a
voluntary dismissal.”) (citing In Re Paoli, 916 F.2d at 863).
In this case, several factors weigh in favor of granting Plaintiffs’ motion to dismiss
without prejudice pursuant to Rule 41. First, the expense of a second litigation would not be
excessive or duplicative. Plaintiffs are a mere five individuals identified among hundreds of
other Paulsboro residents currently being represented by the same counsel, and prosecuting the
same claims in state court. Defendants will not be prejudiced by defending against these
Plaintiffs in a second lawsuit, because they are already defending nearly identical claims in state
court, whether Plaintiffs join or not. Plus, Plaintiffs make claims for personal injuries in their
state court complaints, whereas the federal litigation involving these Plaintiffs allege only
economic damages. Presumably, then, no discovery has taken place with respect to the alleged
personal injuries of these Plaintiffs, and therefore a second litigation cannot be duplicative.
Despite the litany of efforts Defendants claim they carried out in preparation for this case,
it appears that the vast majority of those actions were undertaken in response to the class
allegations, and not the claims of the individual Plaintiffs. Defendants presumably made
significant efforts and incurred significant expenses in filing their motion to dismiss the SAC,
answering the SAC, and briefing the motion for class certification; however, as Plaintiffs point
out, none of the Plaintiffs except for Donald Wilson were named in the SAC, and thus the Court
has no reason to believe that Defendants’ efforts were not limited to addressing the class
allegations.6 Nor will the work undertaken by Defendants responding to Plaintiffs’ economic
loss claims be wasted, as other plaintiffs remain with similar claims in federal court.

6

Even regarding Donald Wilson, Defendants have not shown that the discovery conducted was not limited to his
role as a class representative, and thus the Court may conclude that Defendants have likewise made little effort
responding to Donald Wilson’s individual claims.
6

Furthermore, though Plaintiffs’ initial Complaints were filed in 2012, these consolidated
cases have not progressed to a point that would prevent this court from granting the dismissals
Plaintiffs seek. Discovery has just barely closed and was still ongoing at the time that these
motions were filed, and the deadline for dispositive motions has not yet come.7 See Amended
Scheduling Order, Doc. No. 545. This is not a case in which dismissal is sought on the eve of
trial. See Ferguson, 492 F.2d at 28. In addition, Plaintiffs did not lack diligence in filing their
motion to dismiss. This Court denied class certification on August 20, 2014, and Plaintiffs filed
their notices of dismissal just three months later. Plaintiffs are placed in an unusual situation in
this case. Plaintiffs are unnamed parties in a complaint that sought and was denied class
certification, but these individuals still wish to have their claims litigated, and are choosing to do
so in state court. The Court does not find that any delay was prejudicial to Defendants.
Defendants contend that Plaintiffs filed their notices of dismissal in order to avoid
litigation in this Court after the “adverse ruling” denying class certification. Def. Br. 5-6. This
Court will not grant a motion for voluntary dismissal made solely in order to avoid an
unfavorable ruling; however, where plaintiffs have a legitimate reason for dismissal and have
shown that a dismissal would not result in prejudice to defendants, the court may grant the
voluntary dismissal nonetheless. See In re Brand Name Prescription Drugs Antitrust Litig., Nos.
94C897, MDL 997, 1995 WL 495937, at *2 (M.D. Ala. Aug. 17, 1995). Even assuming that the
denial of class certification was an “adverse ruling,” as discussed above, Plaintiffs have

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Although Defendants have since filed a motion for partial summary judgment, there is no indication that this
motion was contemplated by Plaintiffs in their decision to file their motion to dismiss, nor has there been any
indication by this Court as to how it may rule on the pending motion. See DuToit v. Strategic Minerals Corp., 136
F.R.D. 82, 85-86 (D. Del. 1991) (“[A] plaintiff’s purported desire to avoid a potential adverse determination does
not warrant denial of voluntary dismissal unless the plaintiff’s motion follows an indication by the court that it
intends to rule against the plaintiff on the pending motion.”)

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suggested a legitimate reason for dismissal and the Court does not find that substantial prejudice
to Defendants would result from the dismissal of Plaintiffs’ claims.8
III. CONCLUSION
For the reasons expressed above, Defendants’ motion to vacate Plaintiffs’ notices of
voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1) is GRANTED. Plaintiffs’ cross-motion
to dismiss pursuant to Fed. R. Civ. P. 41(a)(2) is GRANTED. Plaintiffs’ claims will be
DISMISSED WITHOUT PREJUDICE. An appropriate Order shall issue.

Dated: 3/13/2015

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s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

See also note 7, supra.
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