Arsenault et al v. Berrard et al

Filing 12

ORDER that all claims asserted against all defendants therein are dismissed with prejudice as to Arsenault Action, 3:12-cv-2386 (filed in MDL Master Docket as Doc. No. 139). Signed by Senior Judge Graham Mullen on 2/9/2016. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

IN RE SWISHER HYGIENE, INC.
SECURITIES AND DERIVATIVE
LITIGATION

CLARENCE ARSENAULT,
Plaintiff,
v.
STEVEN R. BERRARD, et al.,
Defendants.
and
SWISHER HYGIENE, INC.,
Nominal
Defendant.

§
§
§ MDL DOCKET NO.: 3:12-MD-2384-GCM
§
§
§
§
§
§
§ MEMBER CASE DOCKET NO.:
§ 3:12-cv-02386-GCM
§
§
§
§
§
§
§
§
§
§
§
§
§

NOTICE OF VOLUNTARY DISMISSAL AND ORDER DISMISSING
VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT
WHEREAS, on May 21, 2012, Clarence Arsenault (“Arsenault”) filed his derivative
action complaint in the United States District Court for the Southern District of New York;
WHEREAS, the complaint has not been served on any of the individual defendants or
nominal defendant Swisher Hygiene, Inc. (“Swisher”);

WHEREAS, the action was subsequently transferred to the United States District Court
for the Western District of North Carolina where other related class actions were already pending
before the Court;
WHEREAS, on October 24, 2012, the Court stayed the action pending resolution of a
consolidated class action captioned In re Swisher Hygiene, Inc. Securities and Derivative
Litigation, MDL Docket No. 3:12-MD-2384-GCM (“Consolidated Class Action”) (Dkt. No. 36);
WHEREAS, on August 6, 2014, the Court approved a settlement of the Consolidated
Class Action (Dkt. No. 107);
WHEREAS, none of the named defendants have filed an answer to the complaint or a
motion for summary judgment; and
WHEREAS, Arsenault seeks to dismiss his derivative action pursuant to Federal Rule of
Civil Procedure Rule 41(a)(1)(A)(i).
NOW THEREFORE:
1.

The Complaint is dismissed and all claims asserted against all defendants therein
are dismissed with prejudice as to Arsenault.

2.

Each side shall bear his or their own fees, expenses and costs incurred in
connection with this action, provided that this Notice and Order does not affect
any defendant's right to indemnification, advancement or insurance.

3.

Because this suit is dismissed without prejudice as to Swisher or any Swisher
stockholders other than Arsenault, and no compensation in any form has passed or
will pass directly or indirectly to Arsenault or his attorneys, the voluntary
dismissal of this action does not require any notice to stockholders pursuant to
Rule 23.1(c). See Sheinberg v. Fluor Corporation, 91 F.R.D. 74 (S.D.N.Y. 1981)

2

(not requiring notice under Rule 23.1(c) where dismissal did not affect the rights
of any party other than the named plaintiff).

Respectfully submitted,

s/ Peyton J. Healey
.
Patrick W. Powers
Peyton J. Healey
[e-mail]
[e-mail]
POWERS TAYLOR LLP
8150 North Central Expressway, Suite 1575
Dallas, Texas 75206
Tel: [phone]
Brian C. Kerr
BROWER PIVEN
488 Madison Avenue, 8th floor
New York, New York 10022
Tel: [phone]
[e-mail]
THE BRISCOE LAW FIRM, PLLC
Willie C. Briscoe
8150 North Central Expressway, Suite 1575
Dallas, Texas 75206
Tel: [phone]
[e-mail]
Attorneys for Plaintiff Clarence Arsenault
Dated: February 4, 2016

SO ORDERED.
Signed: February 9, 2016

3