Lopes v. First Unum Life Insurance Company

Filing 31

ORDER DISMISSING COUNTERCLAIM: For the reasons stated in the attached written Order, it is hereby ORDERED that defendant's motion to voluntarily dismiss the remaining counterclaim without prejudice in accordance with Rule 41(a)(2), (Doc. No. 30), is GRANTED. As this Order disposes of all outstanding claims, the Clerk of Court is directed to close this case. Ordered by Judge Roslynn R. Mauskopf on 9/7/2012. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BARBARA LOPES,
Plaintiff,

ORDER
09-CV-02642 (RRM)(SMG)

- against FIRST UNUM INSURANCE COMPANY,
Defendant.
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ROSLYNN R. MAUSKOPF, United States District Judge.
BACKGROUND

Plaintiff Barbara Lopes brought this action seeking monetary and equitable relief against
defendant First Unum Life Insurance Company under the Employment Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., challenging Defendant’s denial of
disability benefits. (Compl. (Doc. No. 1) ¶¶ 1, 10.) Defendant counterclaimed, seeking
judgment for collateral offset. (Answer & Conditional Countercl. (Doc. No. 3) 2.) On March
30, 2011, this Court issued a Memorandum and Order denying plaintiff’s motion for summary
judgment in its entirety, granting defendant’s motion for summary judgment dismissing
plaintiff’s claims, and denying defendant’s motion for summary judgment as to its counterclaim
for collateral offset. See Lopes v. First Unum Life Ins. Co., No. 09-CV-2642 (RRM)(SMG)
(Doc. No. 21), 2011 WL 1239899, at *11 (Mar. 30, 2011); (Def.’s Mot. for Summ. J (Doc. No.
11) at 1; Pl.’s Mot. for Summ. J. (Doc. No. 15) at 1). This Court later denied reconsideration of
that motion on December 27, 2011. (Order denying Motion to Alter Judgment (Doc. Mo. 26).)
The parties then participated in several telephonic conferences with Magistrate Judge
Gold, in an effort to resolve the outstanding counterclaim. The minute entry for each of those

conferences noted plaintiff’s repeated failure to decide whether to accept terms presented by the
defendant for a resolution, or, alternatively, to litigate further. (See, e.g., Doc. Nos. 27–29.) On
April 2, 2012, defendant filed a letter motion for an order allowing voluntary dismissal of the
counterclaim without prejudice. (Doc. No. 30.) On August 24, 2012, this Court issued an Order
to Show Cause by August 30, 2012 why defendant’s counterclaim should not be dismissed
without prejudice. (See Dkt. Entry dated Aug. 24, 2012.) The Order notified plaintiff that
“failure to respond as hereby ordered will result in dismissal of the counterclaim without
prejudice.” (Id.) As of September 4, 2012, plaintiff has failed to respond to the Court’s Order.
LEGAL STANDARD
Federal Rule of Civil Procedure 41(a)(2) provides that, where an answer has been served
and the parties refuse to stipulate to dismissal, an action may be dismissed at the party’s request
only by court order, on terms that the court considers proper. See Dzanoucakis v. Chase
Manhattan Bank, USA, No. 06 Civ. 5673 (JFB) (ARL), 2008 WL 820047, at *2 (E.D.N.Y. Mar.
25, 2008). Although voluntary dismissal without prejudice is not a matter of right, courts in this
circuit presume that a party’s motion to dismiss its own claims without prejudice should be
granted. See Team Obsolete Ltd. v. A.H.R.M.A. Ltd., 216 F.R.D. 29, 36 (E.D.N.Y. 2003).
Two lines of authority have developed with respect to the circumstances under
which a dismissal without prejudice might be improper. One line indicates that
such a dismissal would be improper if “the [counter-]defendant would suffer
some plain legal prejudice other than the mere prospect of a second lawsuit.”
Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947). Another line
indicates that the test for dismissal without prejudice involves consideration of
various factors, known as the Zagano factors, including (1) the [counter]plaintiff’s diligence in bringing the motion, (2) any undue vexatiousness on the
[counter-]plaintiff’s part, (3) the extent to which the suit has progressed, including
the [counter-]defendant’s efforts and expense in preparation for trial, (4) the
duplicative expense of relitigation, and (5) the adequacy of the [counter]plaintiff’s explanation for the need to dismiss. Zagano v. Fordham Univ., 900
F.2d 12, 14 (2d Cir. 1990).

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Camilli v. Grimes, 436 F.3d 120, 123 (2d Cir. 2006).
DISCUSSION
Here, the Court is aware of no plain prejudice that the plaintiff would suffer if
defendant’s counterclaim is dismissed without prejudice. Dismissal obviates the need here for
additional motion practice and/or trial, saving time and resources that are best reserved in the
event the counterclaim is revived in a new action. Moreover, defendant was neither dilatory nor
vexatious in bringing its counterclaim. In fact, it is the plaintiff/counter-defendant has caused
delay in moving the counterclaim forward. Despite an order from the magistrate judge that
plaintiff develop a firm position on the settlement offer, the aim of which was to allow the case
to move forward either toward resolution or trial, plaintiff reported again and again that she had
failed to come to a decision as to the offer. (See, e.g., Doc. Nos. 27–29.) Finally, plaintiff failed
to respond to this Court’s Order to Show Cause, despite being on notice that to do so would
result in dismissal. A district court has the inherent power to manage its own affairs “so as to
achieve the orderly and expeditious disposition of cases.” Lewis v. Rawson, 564 F.3d 569, 575
(2d Cir. 2009) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)). Consistent with
that inherent authority, applicable law explicitly empowers a district court, in the exercise of its
sound discretion, to dismiss an action “[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order[.]” Fed. R. Civ. P. 41(b). Plaintiff’s failure to respond to this Court’s order
provides additional grounds for dismissal.

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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that defendant’s motion to voluntarily
dismiss the remaining counterclaim without prejudice in accordance with Rule 41(a)(2), (Doc.
No. 30), is GRANTED. As this Order disposes of all outstanding claims, the Clerk of Court is
directed to close this case.

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
September 7 , 2012

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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