TITLE INDUSTRY ASSURANCE COMPANY, RRG v. PARK AVENUE ABSTRACT, INC. et al
OPINION. Signed by Judge Robert B. Kugler on 5/6/2015. (TH, )
NOT FOR PUBLICATION
(Doc. No. 60)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TITLE INDUSTRY ASSURANCE
PARK AVENUE ABSTRACT, INC., et al.
Civil No. 14-4060 (RBK/JS)
KUGLER, United States District Judge:
This matter arises out of an insurance coverage dispute. Plaintiff Title Industry
Assurance Company, RRG (“TIAC” or “Plaintiff”) seeks declaratory judgment from the Court
that the terms of the policy it issued to Defendant Park Avenue Abstract, Inc. excludes Park
Avenue Abstract and other named Defendants Richard Roney (“Roney”) and Donald Luciano
(“Luciano”) from coverage in certain actions against them. Plaintiff now moves for voluntary
dismissal pursuant to Fed. R. Civ. P. 41(a)(2).1 For the reasons discussed herein, Plaintiff’s
motion is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
TIAC issued an Abstracters, Title Insurance Agents and Escrow Agents Professional
Liability Insurance Policy (the “Policy”) to Park Avenue Abstract for the May 9, 2012 to May 9,
Plaintiff originally filed this motion in the alternative to its Motion to Enforce the Settlement Agreement. (See
Doc. No. 60.) Plaintiff thereafter withdrew its Motion to Enforce the Settlement Agreement, (Doc. No. 62), but the
instant motion remained pending before the Court, (Doc. No. 63.)
2013 policy period. (See Ex. F to Am. Compl.) Roney and Luciano were employees of Park
Avenue Abstract and are Insureds along with it under the Policy. (Am. Compl. ¶¶ 8-9 and Ex.
F.) Park Avenue Abstract, Roney and Luciano were named as defendants in multiple lawsuits
filed in the Camden County Superior Court (the “Underlying Litigation”) arising from their
allegedly fraudulent activities. (Am. Compl. ¶ 30.) These lawsuits were filed by Defendants
Customers Bank, (Ex. A to Am. Compl.), Stonegate Mortgage Corporation, (Ex. B. to Am.
Compl.), Commonwealth Land Title Insurance Company, (Ex. C. to Am. Compl.), and Charles
Wright, et al.,2 (Ex. D. to Am. Compl.) Additionally, NYCB Mortgage Company (“NYCBM”)
asserted a claim against Park Avenue Abstract during the relevant policy period. (Ex. E to Am.
Compl.) TIAC initiated the current action seeking a judicial declaration that the Policy does not
provide the Insureds with coverage for the Underlying Litigation or NYCBM’s claim. (Am.
Compl. ¶ 2.) Plaintiff now seeks an order of voluntary dismissal, without prejudice, pursuant to
Fed. R. Civ. P. 41(a)(2). Plaintiff’s motion is unopposed.3
Fed. R. Civ. P. 41(a)(2) provides 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.” Whether a Rule 41(a)(2) dismissal should be granted is thus 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
The Wright litigation includes as plaintiffs the following parties: Charles Wright, Olivia Cleaver, James Cole,
Jillian Rose Cole, Joanne Henle, Frederick Graziani, Luigi Sellecchia, Susan Bunnell-Jackson, and Erik T. Jackson.
(See Ex. D. to Am. Compl.)
Defendant Customers Bank filed an opposition to Plaintiff’s Motion to Enforce the Settlement Agreement, but the
opposition did not address Plaintiff’s alternative Motion to Dismiss. (Doc. No. 61.) See supra, note 1.
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
prejudice simply does not result … when plaintiff may gain some tactical advantage by a
voluntary dismissal.”) (citing In Re Paoli R.R. Yard PCB Litig., 916 F.2d at 863).
The Court finds dismissal appropriate in this case. First and foremost, Plaintiff represents
to the Court that it will provide Park Avenue Abstract, Roney and Luciano with defenses in the
Underlying Litigation and the NYCBM claim, rendering the declaration sought in the lawsuit
moot. (Pl.’s Br. 12.)
The relative infancy of the case also weighs heavily in favor of dismissal. This case has
not progressed past the pleading stage. Since Plaintiff filed its Amended Complaint on July 10,
2014, only Defendants Luciano, Susan Bunnell-Jackson, Erik T. Jackson, Olivia Cleaver, James
Cole, Jillian Rose Cole, Frederick Graziani, Joanne Henle, Luigi Sellecchia, and Charles Wright
have answered. (Doc. Nos. 33, 47.) Defendants Commonwealth Land Title Insurance Company
and Fidelity National Title Insurance Company filed a motion to dismiss, (Doc. No. 39), which
was stayed before any opposition was filed, (Doc. No. 46.) All other pleadings in this case were
stayed pending further order of the Court on October 24, 2014. (Doc. No. 52.) Thereafter, two
settlement conferences were held on November 21, 2014 and February 20, 2015, followed by a
status conference on March 23, 2015. Plaintiffs then filed this motion. (Doc. No. 60.) That is
the extent of it. With most of the parties’ energies thus far directed to their settlement
discussions, it can hardly be said that the cost of a second litigation would be duplicative or
excessive. Furthermore, in the absence of any indication otherwise, the Court can only conclude
that Defendants have not made significant efforts or incurred significant expenses in preparing
for trial. Moreover, Plaintiff was diligent in bringing this motion in the midst of engaging in
settlement discussions, apparently due to information just learned during those negotiations.
(Pl.’s Br. 12.) The Court thus finds that all factors weigh in favor of granting Plaintiff’s motion.
For the foregoing reasons, Plaintiff’s motion to dismiss this action pursuant to Fed. R.
Civ. P. 41(a)(2) is GRANTED. An appropriate Order shall issue.
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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