Siemens Real Estate Holdings, LLC et al v. City of Asheville NC

Filing 9

ORDER denying 6 Motion to Dismiss and denying 7 Motion to Remand. Signed by District Judge Max O. Cogburn, Jr on 08/17/17. (emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-cv-00171-MOC-DLH
JIM SIEMENS; AND
SIEMENS REAL ESTATE HOLDINGS, LLC,
Plaintiffs,
Vs.
CITY OF ASHEVILLE NC,
Defendant.

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ORDER

THIS MATTER is before the court on plaintiff’s Motion to Dismiss (#6) and Motion to
Remand (#7). Defendant has filed a Response (#8) and plaintiffs have not filed a Reply within the
time allowed.
In this case, plaintiffs challenge unfavorable decisions by the Asheville, North Carolina,
City Council on plaintiffs request to rezone their property. Plaintiffs contend that such decisions
were unlawful and that certain provisions of the Unified Development Ordinance are
unconstitutional under both North Carolina and federal law. In the Tenth and Eleventh causes of
action, plaintiffs allege violations of the their substantive due process and equal protection rights
under both the Fourteenth Amendment to the United States Constitution and Article I, Section 19
of the North Carolina Constitution. On June 29, 2017, defendant timely removed this action to this
court correctly asserting that because plaintiffs had asserted federal constitutional claims, this court
had original jurisdiction. Plaintiffs do not appear to challenge the removal in their Motion to
Remand, but simply ask that if the court allows them to dismiss their federal claims as requested

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in their Motion to Dismiss, that the court decline to exercise its supplemental jurisdiction over the
remaining state-law claims and remand the action to state court.
While this court completely agrees with plaintiffs that this matter is better resolved in the
North Carolina General Court of Justice inasmuch as it concerns a zoning dispute that is
particularly local, defendant has correctly pointed the court to prevailing law which provides that
a plaintiff, having alleged federal claims and having been removed to federal court, cannot bypass
that unwanted change in venue by moving to dismiss select federal claims under Rule 41, Federal
Rules of Civil Procedure.
In relevant part, Rule 41 provides that “an action may be dismissed at the plaintiff’s request
… by court order, on terms that the court considers proper.” See Fed. R. Civ. P. 41(a)(2) (emphasis
added). Thus, Rule 41(a) applies only to the dismissal of actions in federal court, and not individual
claims. Gronholz v. Sears, Roebuck and Co., 836 F.2d 515 (Fed. Cir. 1987); Elat v. Ngoubene,
993 F. Supp. 2d 497 (D. Md. 2014); Acts Retirement-Life Communities, Inc. v. Town of
Columbus, No. 1:11cv50, 2011 WL 4449298 (W.D.N.C. Sept. 26, 201). In Acts Retirement-Life
Communities, Inc., the court held as follows:
Rule 41(a)(2) provides that an action may be dismissed at the plaintiff’s
request on the terms that the Court deems proper. Fed.R. Civ. P. 41(a)(2). ‘The
purpose of Rule 41(a)(2) is freely to allow voluntary dismissal unless the parties
will be unfairly prejudiced.’ Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.
1987). Rule 41, however, applies to the dismissal of actions, not claims. See Skinner
v. First Am. Bank of Va., 64 F.3d 659 (4th Cir. 1995) (unpublished decision). The
proper procedural mechanism for Plaintiff to dismiss its federal claims and litigate
the remaining state law claims in state court is to move to dismiss the entire action
pursuant to Rule 41 and then re-file the action in state court without the federal
claims. In the alternative, Plaintiff could request leave to amend the Complaint
pursuant to Rule 15 and file an amended complaint that removed all the federal
claims. Plaintiff, however, may not obtain a dismissal of its federal claims pursuant
to Rule 41.
Id. at *1 (some citations omitted).
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While the undersigned dislikes hyper-technical reading of rules, it is fairly settled at this
point that Rule 41 does not provide plaintiffs with a mechanism to secure the relief they seek.
There are, however, at least two avenues of relief available to plaintiffs. The instant motions will,
therefore, be denied.

ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s Motion to Dismiss (#6) and Motion to
Remand (#7) are DENIED.

Signed: August 17, 2017

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