CORCON, INC. v. DELAWARE RIVER PORT AUTHORITY OF THE COMMONWEALTH OF PENNSYLVANIA AND THE STATE OF NEW JERSEY

Filing 55

ORDER Denying 51 Motion to Strike 51 ; ORDERED that Plaintiff CORCON, INC. is terminated, and CHAMPION PAINTING SPECIALTY SERVICES CORP. is now the Plaintiff, etc. Signed by Judge Noel L. Hillman on 9/3/2021. (rtm, )

Case 1:21-cv-10146-NLH-SAK Document 55 Filed 09/07/21 Page 1 of 6 PageID: 2922

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CORCON, INC.,
Plaintiff,
CHAMPION PAINTING SPECIALTY
SERVICES CORP.,

1:21-cv-10146-NLH-SAK
MEMORANDUM
OPINION & ORDER

Intervenor Plaintiff,
v.
DELAWARE RIVER PORT AUTHORITY
OF THE COMMONWEALTH OF
PENNSYLVANIA AND THE STATE OF
NEW JERSEY,
Defendant.
APPEARANCES:
LAURA MARTIN
WILLIAM G. KELLY (pro hac vice)
GERBER CIANO KELLY BRADY LLP
150 GRAND STREET
SUITE 610
WHITE PLAINS, NY 10547
On behalf of Plaintiff Corcon, Inc.
MICHAEL A. FERRARA, JR.
THE FERRARA LAW FIRM, LLC
601 LONGWOOD AVENUE, STATE HIGHWAY 38
CHERRY HILL, NJ 08002
MARK E. CEDRONE (pro hac vice)
CEDRONE & MANCANO, LLC
230 SOUTH BROAD STREET – SUITE 1100
PHILADELPHIA, PA 19102
On behalf of Intervenor Plaintiff Champion Painting
Specialty Services Corp.

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CHRISTOPHER R. GIBSON
WILLIAM J. O’KANE, JR.
WILLIAM L. RYAN
ARCHER & GREINER, P.C.
ONE CENTENNIAL SQUARE
HADDONFIELD, NJ 08033
On behalf of Defendant Delaware River Port Authority of the
Commonwealth of Pennsylvania and the State of New Jersey
HILLMAN, District Judge
WHEREAS, this matter concerns the third and final phase of
a project to paint the Commodore Barry Bridge, which is operated
by Defendant Delaware River Port Authority of the Commonwealth
of Pennsylvania and the State of New Jersey (“DRPA”), and DRPA’s
April 5, 2021 decision to re-bid the Phase 3 contract, on which
Corcon, Inc. and Champion Painting Specialty Services Corp. bid;
and
WHEREAS, on April 23, 2021, Corcon, Inc. filed a complaint
and request for injunctive relief against DRPA concerning DRPA’s
intent to re-bid the contract; and
WHEREAS, after a hearing on June 10, 2021 and the
submission of supplemental briefing, on June 28, 2021, the Court
granted the motion of Champion Painting Specialty Services Corp.
to intervene in this action to assert its request for injunctive
relief against DRPA concerning DRPA’s intent to re-bid the
contract; and
WHEREAS, on July 1, 2021, Corcon filed a notice of
voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i);
2

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and
WHEREAS, Fed. R. Civ. P. 41(a) provides:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e),
23.1(c), 23.2, and 66 and any applicable federal statute,
the plaintiff may dismiss an action without a court order
by filing:
(i) a notice of dismissal before the opposing party
serves either an answer or a motion for summary
judgment; or
(ii) a stipulation of dismissal signed by all parties
who have appeared.
(B) Effect. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if
the plaintiff previously dismissed any federal- or
state-court action based on or including the same
claim, a notice of dismissal operates as an
adjudication on the merits.
(2) By Court Order; Effect. Except 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. If a defendant has pleaded a counterclaim
before being served with the plaintiff's motion to dismiss,
the action may be dismissed over the defendant's objection
only if the counterclaim can remain pending for independent
adjudication. Unless the order states otherwise, a dismissal
under this paragraph (2) is without prejudice; and
WHEREAS, Corcon filed its Fed. R. Civ. P. 41(a)(1)(A)(i)
notice of voluntary dismissal without a stipulation signed by
all the parties or a court order because DRPA had not served an
answer or a motion for summary judgment; and
WHEREAS, on July 8, 2021, Champion filed a motion styled,
3

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“MOTION to Strike 48 Notice of Voluntary Dismissal” [51]; and
WHEREAS, Champion argues that because significant time and
effort has been already expended by the parties and the Court
concerning Champion’s motion to intervene and the requests for
injunctive relief, the Court should construe the extensive
proceedings to date as the equivalent of an answer or motion for
summary judgment, and not permit Corcon to dismiss its case
against DRPA without prejudice, which would leave open the
opportunity for Corcon to reassert its claims against DRPA in a
new action, and subvert Rule 41’s purpose and policy
considerations; and
WHEREAS, Champion argues in the alternative that because
its motion to intervene was granted, it stands in the same
position as Corcon as the plaintiff, and it should be permitted
to pursue its claims against DRPA as if it had instituted this
action originally; and
WHEREAS, the Court finds that Fed. R. Civ. P.
41(a)(1)(A)(i) explicitly permits Corcon to dismiss its claims
against DRPA without this Court’s intervention, and the Court
has no reason or mechanism for precluding Corcon from doing so
under the current procedural posture of this case, see, e.g.,
Sciore v. Phung, 2019 WL 4126651, at *2 (D.N.J. 2019) (where the
plaintiff filed a Fed. R. Civ. P. 41(a)(1)(A)(i) voluntary
notice of dismissal, and the defendant filed a motion to vacate
4

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the voluntary notice of dismissal under Rule 60(b) so the court
could enforce the parties’ settlement agreement, the court
noting that a Fed. R. Civ. P. 41(a)(1)(A)(i) voluntary notice of
dismissal is “a product of Plaintiffs’ deliberate, strategic
choice,” and Court had no mechanism under Rule 60(b) to prevent
the plaintiff’s availment of Rule 41(a)(1)(A)(i)); and
WHEREAS, as this Court noted in the Opinion addressing
Champion’s motion to intervene, “the intervenor is treated as if
the intervenor were an original party and has equal standing
with the original parties,” and “the intervenor is entitled to
litigate fully on the merits once intervention has been
granted,” 7C Wright & Miller Fed. Prac. & Proc. Civ. §§ 1919,
1920 (3d ed.); and
WHEREAS, Corcon’s voluntary dismissal of its claims against
DRPA does not impact Champion’s ability to prosecute its claims
against DRPA as if it had been a plaintiff from the inception of
this case;
THEREFORE,
IT IS on this

3rd

day of

September

, 2021

ORDERED that the MOTION to Strike 48 Notice of Voluntary
Dismissal by CHAMPION PAINTING SPECIALTY SERVICES CORP. [51] be,
and the same hereby is, DENIED; and it is further
ORDERED that the Clerk of the Court shall address Corcon’s
Fed. R. Civ. P. 41(a)(1)(A)(i) notice of voluntary dismissal as
5

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it would in the normal course of docket administration, and
amend the docket to reflect the current position of the parties,
with Champion as Plaintiff (and no longer Intervenor Plaintiff)
and DRPA as Defendant. 1

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

This Court’s findings regarding the proper application of Fed.
R. Civ. P. 41(a)(1)(A)(i) to Corcon’s notice of voluntary
dismissal, and this Court’s direction to the Clerk to implement
Corcon’s Fed. R. Civ. P. 41(a)(1)(A)(i) notice of voluntary
dismissal, do not constitute a final judgment, order, or
proceeding that would provide any party recourse under Rule
60(b) or any other rule that would serve to undermine Corcon’s
ability to voluntarily dismiss its claims without Court
intervention under Fed. R. Civ. P. 41(a)(1)(A)(i).
1

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