Brunett et al v. SCI Funeral and Cemetery Purchasing Cooperative, Inc. et al

Filing 51

Memorandum Opinion and Order re 47 Notice of Dismissal filed by Mickie Wuescher, Jorge Brunett, Debra Carman. Plaintiffs' lawsuit has been terminated and removed from the docket of the undersigned. Judge Benita Y. Pearson on 8/12/2011. (JLG)

PEARSON, J.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JORGE BRUNETT, et al,
Plaintiffs,
v.
SERVICE CORPORATION
INTERNATIONAL, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO. 1:10CV02605

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION &
ORDER

I. INTRODUCTION
This matter is before the Court on Plaintiffs, Jorge Brunett, Debra Varman and Mickie
Wuescher (Collectively “Plaintiffs”) notice of dismissal pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i). ECF No. 47. On May 18, 2011, the undersigned issued an Order directing the
parties to show cause whether Plaintiffs’ notice to dismiss this case should be without prejudice
pursuant to Rule 41(a)(1)(A)(i), as indicated by Plaintiffs, or with prejudice as required by Rule
41(a)(1)(B). In response, Plaintiffs maintained the dismissal was without prejudice. Defendants
argued the contrary. ECF Nos. 48 and 49. After a review of the corresponding submissions, and
applicable case law, the Court finds that Plaintiffs’ indication that the dismissal is without
prejudice is premature for the reasons detailed below.
II. BACKGROUND
This putative class action was filed on behalf of the named Plaintiffs and other similarly
situated Ohio employees pursuant to Fed R. Civ Pro. 23, against Defendants, Service Corporation
International, SCI Funeral and Cemetery Purchasing Cooperative, Inc., SCI Eastern Market

(1:10cv02605)
Support Center, L.P., SCI Ohio Funeral Services, Inc., Jane D. Jones, Gwen Petteway, and
Thomas Ryan (Collectively “Defendants”). ECF No. 39. Generally, Plaintiffs seek the recovery
of unpaid wages. ECF No. 39.
In addition to initiating the instant case, Plaintiffs’ counsel has filed over 17 actions
throughout the country against Defendants on substantially similar grounds. ECF No. 18 at 5.
At least two of those lawsuits have been dismissed–one dismissal was voluntary. ECF Nos. 39
at 2-3 and 46-1.
On November 22, 2010, Defendants moved the Court to dismiss this case pursuant to the
First to File Rule on the basis that it was duplicative of one of the previously filed lawsuits. ECF
No. 10. Plaintiffs opposed the motion (ECF No. 40); Defendants replied (ECF No. 46).
On May 11, 2011, the Court held a telephone conference and informed the parties that
after reviewing their briefs, the Court found that the instant lawsuit substantially overlapped an
earlier filed class action. Accordingly, the Court informed Counsel they should anticipate the
Court ruling in favor of Defendants and staying the case pending the resolution of the earlier filed
lawsuit.
Prior to the Court issuing its forecasted ruling, Plaintiffs filed a Notice of Voluntary
Dismissal, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), stating that the named Plaintiffs’
“voluntarily dismiss their claims without prejudice.” ECF No. 47 at 1. Aware that Plaintiffs had
previously dismissed a substantially similar case (ECF No. 39 at 2-3), the Court ordered the
parties to show cause as to why the dismissal in the instant case should be without prejudice

2

(1:10cv02605)
pursuant to Rule 41(a)(1)(A)(i). In compliance with the Court’s order, the parties filed respective
briefs. ECF Nos. 48 and 49.
III. DISCUSSION
Plaintiffs’ contend that dismissal without prejudice is appropriate because the “two
dismissal rule” of Fed. R. Civ. P. 41(a)(1)(B) is inapplicable here given that the first voluntary
dismissal was by stipulation of all parties and Court order. ECF No. 49 at 3. In making this
argument, Plaintiffs’ rely upon the Seventh Circuit Court of Appeals’ decision, Poloron
Products, Inc. v. Lybrand Ross Bros. & Montgomery, wherein the Court found that a notice of
dismissal preceded by dismissal by stipulation without prejudice did not invoke the two dismissal
rule, and therefore did not require a court to find the second dismissal as an adjudication on the
merits. 534 F.2d 1012, 1017-1018 (2d Cir. 1976). In opposition, Defendants’ aver that
Plaintiffs’ notice of dismissal operates as an adjudication on the merits, pursuant to Fed. R. Civ.
P. 41(a)(1)(B). ECF No. 48.
Given that Defendants had filed no answer or motion for summary judgment, it is
undisputed that Plaintiffs were entitled to voluntarily dismiss the above-captioned action without
leave of Court or consent of Defendants, as it did on May 17, 2011. Accordingly, the instant
action is dismissed in its entirety from the Court’s docket. The Court finds, however, that
Plaintiffs’ indication that the dismissal is without prejudice may be premature. Whether
Plaintiffs’ second voluntary dismissal operates without prejudice can only be determined if and
when a third action is filed, as this Court no longer has jurisdiction to make such a ruling. See
Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1079-1080 (9th Cir.1999) (“once a

3

(1:10cv02605)
notice of voluntary dismissal is filed, the district court in which the action is pending loses
jurisdiction and cannot exercise discretion with respect to the terms and conditions of the
dismissal. Nor may it rule at the defendant's request on whether the plaintiff's notice of dismissal
in a second action is with prejudice or without prejudice.”); see also Infocision Management
Corp. v. Foundation for Moral Law, Inc., 2009 WL 650282, N.D. Ohio 2009 *3 (“A voluntary
dismissal under Rule 41(a)(1) leaves the parties as if no action had been brought.”)
IV. CONCLUSION
For the above mentioned reason, Plaintiffs’ lawsuit has been terminated and removed
from the docket of the undersigned.
IT IS SO ORDERED.

August 12, 2011
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

4