Boans v. Town of Cheektowaga et al

Filing 13

ORDER denying 10 Motion to Vacate. Signed by Hon. Richard J. Arcara on 8/3/2009. (JMB)

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK

RUDOLPHUS BOANS, JR., Plaintiff, D E C IS IO N AND ORDER 0 9 -C V - 3 7 A

v.

TOWN OF CHEEKTOWAGA et al., Defendants.

D e fe n d a n t s Town of Cheektowaga, Town of Cheektowaga Police D e p a rtm e n t, Police Officer Brian R. Gray, and James E. Davis ("defendants" or th e "now-remaining defendants") have made a motion to vacate the Order of this C o u rt dated July 13, 2009, adopting a stipulation of discontinuance between p la in tiff and certain former defendants. Defendants claim that they had no prior n o tic e of the stipulation and that it did not indicate that it was a partial stipulation. Defendants claim further that they had to approve the stipulation and would have re fus e d to do so because it prejudices them and the cross-claims that they have a s s e rte d . Because this Court had the authority to accept the stipulation as filed, a n d because there is no indication anywhere in the docket that defendants have a n s w e re d the complaint, let alone asserted cross-claims, the Court will deny the m o tio n without the need for a response from plaintiff.

B AC K G R O U N D O n December 12, 2008, plaintiff filed a summons and complaint in New Y o rk State Supreme Court, Erie County. The complaint contained three causes o f action arising from an incident that allegedly occurred in the early morning of S e p te m b e r 15, 2007, in the drive-through lane of a McDonald's restaurant in C h e e k to w a g a , New York. From the information available in the complaint, p la in tiff was in his car in the drive-through lane when a motor vehicle owned and o p e ra te d by the former defendants struck his car. This accident, and the re s u ltin g injuries that plaintiff allegedly sustained, gave rise to the second and th ird causes of action for personal injury and negligent hiring of the driver. The s e c o n d and third causes of action named only the now-former defendants. Although the complaint does not explain how events unfolded, the first c a u s e of action arose from a separate incident that allegedly occurred at the s a m e time and place and that also involved plaintiff. In the first cause of action, p la in tiff accused defendants of violations of 42 U.S.C. § 1983 that included false a rre s t and malicious prosecution. The first cause of action of action named d e fe n d a n ts only, not any of the former defendants. O n January 12, 2009, defendants removed this case to this Court. From th e information available on the docket, defendants did not answer the complaint in state court and never answered the complaint after removal as required by R u le 81(c)(2) of the Federal Rules of Civil Procedure ("FRCP"). The next activity 2

in this case that concerned the merits 1 occurred in June. On June 30, 2009, p la in tiff filed a stipulation of discontinuance. The stipulation listed the case n u m b e r for this case and purported to discontinue "the above entitled action," but lis te d only the now-former defendants and their non-party insurer in the caption. W h e n the Court inquired by telephone why a non-party insurer appeared in the c a p tio n while the now-remaining defendants did not, plaintiff's counsel clarified th a t the stipulation was crafted to discontinue only the personal injury claim (i.e., th e second and third causes of action in the complaint). Because the stipulation in d e e d does not name the now-remaining defendants, the Court construed the s tip u la tio n in this way and dismissed the second and third causes of action with p re ju d ic e , in an Order entered on July 13, 2009. O n July 17, 2009, defendants filed a motion to vacate this Court's July 13, 2 0 0 9 Order. In support of their motion, defendants contend that they did not k n o w in advance that a stipulation would be filed, and that their approval was n e e d e d pursuant to FRCP 41(a)(1)(A)(ii). Defendants contend further that "d e fe n d a n t Town has asserted cross claims against the co-defendants" and that a d is c o n tin u a n c e in violation of FRCP 41(a)(1)(A)(ii) prejudices them and their c r o s s - c la im s .

On June 30, 2009, this Court granted conditionally plaintiff's counsel's m o tio n to withdraw. 3

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D IS C U S S I O N T h is Court had full authority to dismiss the causes of action against the fo rm e r defendants, pursuant to the stipulation that plaintiff filed. Defendants note c o rre c tly that FRCP 41(a)(1)(A)(ii) requires generally that dismissal of "an action" re q u ire s the signatures of "all parties who have appeared." Even if FRCP 41(a) w e re the only rule governing the stipulation, though, defendants' motion rests on to o literal an interpretation of that rule. "W e would be inclined to favor . . . the lib e ra lity of the contrary view espoused in other cases . . . . Yet it may not be m a te r ia l whether the court acts under Rule 15(a) which relates to amendments, o r Rule 21 which concerns misjoinder, or Rule 41(a)(2)." Johnston v. Cartwright, 3 5 5 F.2d 32, 39 (8th Cir. 1966) (citations omitted); accord Baksh v. Captain, No. 9 9 -C V - 1 8 0 6 , 2000 W L 33177209, at *2 (E.D.N.Y. Dec. 11, 2000) (quoting J o h n s to n ). More importantly, defendants have not cited FRCP 15 and 21, two o th e r rules that allow this Court to recognize plaintiff's right not to pursue the p e rs o n a l injury causes of action. "[I]t is clear that a district court may permit w ith d r a w a l of a claim under Rule 15, subject to the same standard of review as a w ithd ra w a l under Rule 41(a)." Wakefield v. N. Telecom, Inc., 769 F.2d 109, 114 n .4 (2d Cir. 1985) (citation omitted). Also, "Rule 21 permits a court to add or drop p a rtie s to an action when doing so would serve the ends of justice and further the p ro m p t and efficient disposition of the litigation." German by German v. Fed. H o m e Loan Mortgage Corp., 896 F. Supp. 1385, 1400 (S.D.N.Y. 1995) (citations 4

o m itte d ). Here, plaintiff filed a complaint that contained two distinctly different c la im s against non-overlapping defendants. Plaintiff later decided not to pursue th e personal injury claim. Plaintiff memorialized that decision by filing a s tip u la tio n that named only the defendants in the personal injury claim and d is c o n tin u e d that claim. Plaintiff filed that stipulation before the service of any a n s w e r. This early in the case, before issue even has been joined, there is no re a s o n to give defendants to a completely different claim veto power over the s tip u la tio n and to force plaintiff to prosecute a claim against his wishes. Between R u le s 15, 21 and 41, the Court has authority to allow plaintiff to prosecute the c a s e as he sees fit at this early stage. D is m is s a l of the personal injury causes of action also cannot prejudice d e fe n d a n ts in the absence of an appearance, or joinder of issue. Prior to the p e n d in g motion, the only document that defendants filed in the docket for this c a s e was the notice of removal. The notice of removal contains no information s u g g e s tin g that defendants answered the complaint in state court. Despite the re q u ire m e n ts in FRCP 81(c)(2), defendants have not answered the complaint p o s t-re m o va l. The removal alone does not constitute a general appearance that w o u ld confer standing to challenge the stipulation. See Clark v. Wells, 203 U.S. 1 6 4 , 171 (1906) ("[T]he exercise of the right of removal did not have the effect of e n te rin g the general appearance of the defendant, but a special appearance only fo r the purposes of removal.") (citation omitted). Without even an answer on file, 5

th e re is no basis in the docket for defendants' contention that they have asserted c ro s s -cla im s or taken any kind of litigation position that would be prejudiced by a d is m is s a l of causes of action that never named them. Once they appear in this c a s e , defendants are free to seek relief under FRCP 13(h) or other applicable a u th o rity if they believe that other parties should appear in this case in connection w ith the first cause of action. C O N C L U S IO N F o r the foregoing reasons, defendants' motion to vacate the Court's Order o f July 13, 2009 is denied.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: August 3, 2009

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