Abatemarco et al v. Legasus of North Carolina, LLC et al

Filing 96

MEMORANDUM OF DECISION AND ORDER granting in part and denying in part Pltfs' 93 Motion to Dismiss; the Bank and the remaining Counter-Defts to conduct an initial attorneys' conf. (IAC) no later than 14 days from entry of this Order; parties to file certificate of IAC within 7 days thereafter. (SEE ORDER FOR DETAILS) Signed by District Judge Martin Reidinger on 9/26/12. (Pro se litigant served by US Mail.) (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv23

GERALD ABATEMARCO, BEN ATKINSON, ANTHONY
BARBIERI, CHRISTIAN BARSANTI, SUSAN BARSANTI,
THOMAS BERITELLI, SHARON BERITELLI, PEGGY
BOWLIN, EDGAR BOWLIN, PAUL BOYDELL, TIFFANY
BOYDELL, BORIS BRAND, MARC BROWNER, ROBERT
BURT, DIANE CARROLL, GREGORY CARTER, JOANNE
CARTER, JANAKI CHANDRAMOULI, SRINIVASAN
CHANDRAMOULI, JEFFREY CHAUS, JO ANN CHAUS,
FREDERIC CLARK, CHRIS CRUZ, CYNTHIA CRUZ,
CONSTANCE FONG, DAVID FONG, ANNA GIABOURANI,
DAVID GRASSE, SHELBY GRASSE, CATHY GRUSSER,
JOSEPH GRUSSER, EDITH HANSEN, JACK HERZBERG,
KRISTINE HERZBERG, DONALD HILL, TRICIA HILL,
DANIEL HINKSON, JULIAN HUTCHINS, LANE HUTCHINS,
MARK IPPOLITO, MELISSA JADICK, RICHARD JADICK,
ALISON JURGERNS, DAN JURGENS, JAMES KARP,
VIVIEN KARP, DENISE KEARY, GREGORY KEARY, ALAN
KESSLER, SANDA KESSLER, SUSAN KORNFELD,
KENNETH KOSCO, MICHELE KOSCO, CINDY LAMIR,
JOSEPH LAMIR, STEVE LANIER, ERIC LAWRENCE,
LENORA LAWRENCE, COLE MACKELPRANG, TRENT
MACKIE, EUGENE MARKHAM, JOHANNA MARKHAM,
DAVE MARKS, TERESA MARKS, CHRIS MATTAROLLO,
TINA MATTAROLLO, JOSEPH McELROY, ANNE
MELLENTHIN, MICHAEL MELLENTHIN, BETH MOSES,
STEVEN MOSES, DONNA PANARELLO, JOHN PARK,
PENELOPE PARK, SUSAN PAYNE, JENNIFER PINKHAM,
ROGER PINKHAM, KATHLEEN POWELL, RICHARD
POWELL, RANDAL PRICE, MEKO L. PRICE, PAMELA
RATCLIFFE, BOYKIN ROBINSON, JENNIFER P.
ROBINSON, DAVID SANDERS, KIM SANDERS, JUDY
SCHUNN, ROBERT SCHUNN, CONNIE JOHNSON-SCOTT,
ROBERT SCOTT, G. DANIEL SIEGEL, GERRY SMITH,
JAMIE SMITH, JEFFREY SNYDER, BRIDGET STEEN,

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JOSEPH STEEN, PAUL TAFFE, TONYA TAFFE, LYNN
TAMN, MARK TAMN, KATHRYN L. TRACY, KEVIN TRACY,
PATRICIA TRACY, AUDREY TROIANO, MICHAEL
TROIANO, CHRIS TURNER, PAMELA R. TURNER,
JENNIFER ULLMAN, NEAL ULLMAN, EDWARD VARON,
BARRON WALL, PETE WASILEWSKI, MICHAEL
WHITEHOUSE, SYLVIA WHITEHOUSE, KATHERINE
WILLIAMS, DARREN WISHNER, JILL WISHNER,
BEVERLY WISHNER, EDWARD WISHNER, RUSSELL
WISHNER, CASEY WOOD, JASON WOOD, DAVID
WRIGHT, STACEY WISHNER, WILLIAM WRIGHT, and
AMANDA ZUMBRUN,
Plaintiffs,
vs.
LEGASUS OF NORTH CAROLINA, LLC, SYNOVUS BANK,
MICHAEL WOLF, THEODORE C. MORLOK, STEPHEN R.
KLORFEIN, as Personal Representative of the Estate of
ROBERT A. CORLISS, JAMES R. PITTS, and MARILYN
McCOY WOODS,
Defendants.

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MEMORANDUM OF DECISION AND ORDER
THIS MATTER is before the Court on the Plaintiffs’ Motion to Dismiss
Without Prejudice [Doc. 93].
Pursuant to the Court’s Order entered June 1, 2012 [Doc. 89] (the
“Severance Order”), the Plaintiffs move to dismiss this action without
prejudice.

[Doc. 93].

Defendant Synovus Bank (“Bank”) opposes the

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Plaintiffs’ motion, arguing that the claims of certain Plaintiffs should be
dismissed with prejudice. The Bank further contends that the remaining
Plaintiffs should be allowed to dismiss their claims without prejudice only
subject to certain conditions, such a re-filing deadline; a limitation on further
filings by the remaining Karp 1 litigants; a requirement that any re-filed case be
filed within 60 days and within this District; and the Bank’s ability to seek
attorneys’ fees and costs upon re-filing. Finally, while the Bank consents to
the dismissal of its counterclaim against Plaintiff Kosco with prejudice, the
Bank opposes the dismissal of any of its remaining counterclaims. [Doc. 94].
The Plaintiffs object to the imposition of any of the proposed conditions
upon the dismissal of the action. The Plaintiffs further argue that the Bank’s
counterclaims should be dismissed along with their claims. [Doc. 95].
Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that “an
action may be dismissed at the plaintiff's request only by court order, on terms
that the court considers proper.” After carefully considering the arguments of
the parties, the Court will grant the Plaintiffs’ motion and allow them to dismiss
their claims pursuant to Rule 41(a)(2). The Court offers no advisory opinion

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Plaintiffs Gerald Abatemarco, Ben Atkinson, Anthony Barbieri, Daniel Hinkson,
James Karp, Gregory Keary, G. Daniel Siegal, Kevin Tracy, Patricia Tracy, Barron Wall,
and Katherine Williams are also litigants in a group of consolidated cases known as
Synovus Bank v. Karp, Civil Case No. 1:10cv172 (W.D.N.C.).
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at this time as to whether such dismissal operates to preclude any future
refiling of such claims.

The Bank’s request for the imposition of certain

conditions upon the dismissal of these claims is denied.
The Plaintiffs’ request for the dismissal of the Bank’s remaining
counterclaims is granted only with respect to Plaintiff Kenneth Kosco. With
respect to the other counterclaims asserted by the Bank against Joseph
McElroy, Mark Tamn, Russell Wishner, David Wright, Edward Wishner, and
Darren Wishner, the Plaintiffs’ request for dismissal is denied. See 9 Wright
& Miller, Federal Practice and Procedure § 2365 at 518-19 (3d ed. 2008)
(“Ordinarily the defendant’s counterclaim can stand on its own and a dismissal
can stand on its own and a dismissal can be granted on the plaintiff’s claims
without affecting the adjudication of the counterclaim.”). As these Plaintiffs
have filed their Reply to the Bank’s Counterclaims [see Doc. 77], issues have
now joined. The parties therefore should proceed with their initial attorneys’
conference.
IT IS, THEREFORE, ORDERED that the Plaintiffs’ Motion for Dismiss
[Doc. 93] is GRANTED IN PART and DENIED IN PART as follows:
(1)

The Plaintiffs’ Motion is GRANTED to the extent that the claims
of the Plaintiffs are hereby DISMISSED; and

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(2)

The Plaintiffs’ Motion is GRANTED with respect to the Bank’s
counterclaim against Plaintiff Kenneth Kosco, which counterclaim
is DISMISSED. With respect to the other counterclaims asserted
by the Bank, the Plaintiffs’ Motion for dismissal is DENIED.

IT IS FURTHER ORDERED that with the dismissal of the Plaintiffs’
claims

against

the

Defendants,

the

Defendants’

cross-claims

for

indemnification and/or contribution are DISMISSED as moot.
IT IS FURTHER ORDERED that the Bank and the remaining CounterDefendants should conduct an initial attorneys’ conference as soon as
possible but no later than fourteen (14) days from the entry of this Order. The
parties shall file a certificate of initial attorneys’ conference within seven (7)
days thereafter.
IT IS SO ORDERED.

Signed: September 26, 2012

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