Lee et al v. Smith & Wesson Corp.

Filing 12

Memorandum Opinion and Order DENYING re 8 Motion to remand to State Court filed by Cynthia A Lee, Mark D Lee, and GRANT IN PART in the amount of $4614.49 5 Motion for costs and Stay of this Action Pursuan tto Rule 41(d) filed by Smith & Wesson Corp. The Court further ORDERS Plaintiffs to pay costs to Defendant by February 1, 2012, or show cause why the case should not be dismissed with prejudice for want of prosecution. The Court will GRANT Defendants Motion to stay the Proceedings (Doc. #5) until costs are paid. Judge Dan Aaron Polster on 10/24/11. (E,P)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK D. LEE, et al.
Plaintiffs,
vs.
SMITH & WESSON CORP.,
Defendants.

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Case No. 1:11-CV-1940
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
AND ORDER

Two motions are pending before the Court: Plaintiffs’ Motion for Remand (Doc. # 8);
and Defendant’s Motion for Costs and Stay (Doc. # 5) pursuant to Rule 41(d) of the Federal
Rules of Civil Procedure.
I. Procedural Posture
On November 4, 2008, Plaintiffs filed a products liability action against Defendant in the
Court of Common Pleas of Richland County, Ohio. The complaint alleged Mark D. Lee was
injured when he fired a revolver manufactured by Smith & Wesson: the cylinder of the gun
swung open and the blast from the shot knocked off Lee’s safety glasses and caused permanent
injuries to his face, including his nose and one eye. (Doc. # 5-2).
On August 6, 2010, in anticipation of trial, Defendant filed a motion to strike and
preclude the testimony of Plaintiff’s expert witness, Richard Ernest, who was expected to testify
that the revolver was defective. (Doc. # 5-4; 5-5). Plaintiffs did not respond to Defendant’s
motion. Instead, on August 16, 2010, three weeks before trial, they hired new counsel and filed
a voluntary dismissal without prejudice pursuant to Rule 41(A) of the Ohio Rules of Civil
Procedure. (Doc. # 5-6; 5-7).
On August 15, 2011, apparently one day before the expiration of the statute of

limitations, Plaintiffs re-filed the products liability action against Defendant in the Court of
Common Pleas of Cuyahoga County, again alleging Lee was injured as a result of a defect in the
revolver. (Doc. # 1-1). Defendant was served with the summons and complaint on August 29.
(Doc. # 1, ¶ 13). Defendant then removed the case to this Court on September 14 on the basis of
diversity jurisdiction, under 28 U.S.C. § 1332. (Doc. # 1).1 Defendant filed a copy of the notice
of removal with the Cuyahoga County court on October 7. (Doc. # 10-2).
II. Plaintiffs’ Motion for Remand
Plaintiffs’ motion for remand was filed in this Court on October 6. (Doc. # 8). The basis
of the motion is that Defendant failed to fulfill the procedural requirements for removal by not
promptly filing a copy of the notice of removal with the Cuyahoga County court. Defendant did
file the notice of removal with the Cuyahoga County court, albeit on October 7, one day after
Plaintiffs filed their motion for remand. (Doc. # 10).
After filing a notice of removal in federal court, a defendant must “[p]romptly...give
written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of
such State court....” 28 U.S.C. § 1446(d). The state court's jurisdiction is terminated when it
receives a copy of the notice of removal.

Schliewe v. Toro, 138 Fed. Appx. 715, 720 (6th Cir.

2005). Until a defendant notifies the state court of removal, the defendant creates concurrent
jurisdiction over the case in both the state and federal courts. Id.
In this case, Defendant filed a copy of the notice of removal with the Cuyahoga County
court 23 days after filing a notice of removal in this Court. The issue, then, is whether 23 days
constitutes prompt notification under 28 U.S.C. § 1446(d).
Several courts have addressed the issue of what is prompt notification. One court found
that a 22-day delay did not violate the prompt filing requirement. Nixon v. Wheatley, 368 F.
Supp. 2d 635, 640 (E.D. Tex. 2005). Another found that a delay of one month was satisfactory.
1

The original action could not be removed to federal court because diversity of citizenship
was lacking. The re-filed case does not name the defendants who defeated diversity in the original
action.

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Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d 246, 246–47 (S.D.N.Y. 2000). See also
Patterson v. State Farm Mut. Auto. Ins. Co., 2009 U.S. Dist. LEXIS 43192 (N.D. Okla. 2009)
(declining to remand where defendant’s delay was 30 days). Even a delay of as much as six
months did not require remand. Whitney v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS
17437 (D. Me. 2004). On the other hand, Judge O’Malley recently found that a delay of eight
months did require remand. Mlotek v. Mlotek, 2011 U.S. Dist. LEXIS 13828 (N.D. Ohio 2011).
This case clearly falls within the range of acceptable delay. The Court therefore finds
that a delay of 23 days between filing a notice of removal in federal court and filing a copy of
that notice with the state court is prompt enough to satisfy the requirements under 28 U.S.C. §
1446(d).
Even though Plaintiffs acknowledge that courts have held that a delay of as much as one
month does not necessitate remand, Plaintiffs nonetheless argue, “in a case like this, where
Defendant has aggressively sought payment of costs from Plaintiffs and dismissal of this case,
while still requiring Plaintiffs to fight this case on two fronts due to their own procedural
failures, the delay and failure of Defendant does warrant remand.” (Doc. # 8, at 5).
The question of whether notice is prompt has nothing to do with what motions the
defendant decides to file in federal court and whether the defendant decides to pursue those
motions aggressively or timidly. Thus, Defendant’s decision to seek payment of costs and a
dismissal of the case is irrelevant. Furthermore, the argument that remand is warranted because
Plaintiffs had to fight this case on two fronts during the 23-day delay is without merit. Although
Plaintiffs took action in state court during the 23-day period, by filing a motion for default judgment, the
state court’s docket reveals that the court itself took no action. (See Case No. CV-11-762052, Court of
Common Pleas of Cuyahoga County).

III. Defendant’s Motion for Costs and Stay
Pursuant to Rule 41(d) of the Federal Rules of Civil Procedure, Defendant moves for an
order requiring Plaintiffs to pay $10,342.90 in costs for the amount spent to defend the action

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that Plaintiffs previously filed and dismissed. Defendant also requests a stay of the proceedings
until those costs are paid. (Doc. # 5).
Rule 41(d) provides:
If a plaintiff who previously dismissed an action in any court files an action based
on or including the same claim against the same defendant, the court: (1) may
order the plaintiff to pay all or part of the costs of that previous action; and (2)
may stay the proceedings until the plaintiff has complied.
Rule 41(d) is intended to prevent vexatious litigation and forum shopping, especially by
plaintiffs who, after suffering setbacks in one court, dismiss the case in order to try their luck
somewhere else. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 874 (6th Cir. 2000) (internal
quotations and citations omitted). It is meant to prevent attempts to gain a tactical advantage by
dismissing and refiling the suit. Id. The decision to award costs is within the discretion of the
Court. Id.
Defendant avers that Plaintiffs dismissed their original action to gain a tactical advantage.
(Doc. # 5-1, at 4). Defendant points out that the voluntary dismissal came three weeks before
trial and ten days after Defendant filed its motion to preclude the testimony of Plaintiffs’ only
expert witness, Richard Ernest. (Id.). Defendant concludes that the “only reasonable inference
that can be drawn here is that Plaintiffs dismissed voluntarily to avoid an adverse ruling on
[Defendant’s] Motion to Preclude the Testimony of Richard Ernest. This is so because, if the
state court had granted [Defendant’s] Motion, the Plaintiffs’ case was over–and they knew it.”
(Id.). While Plaintiffs claim they had no vexatious intent and were not forum shopping,
Plaintiffs admit that their dismissal was “necessitated by Defendant’s motion to strike and the
change of counsel one month prior to trial.” (Doc. # 9, at 6).
The Court agrees with Defendant and finds that Plaintiffs dismissed the original case to
gain a tactical advantage. The timing of Plaintiffs’ decision to file the dismissal is significant. It
is one thing to dismiss a case early on, before the parties have spent a lot of money litigating; it
is quite another to dismiss the case almost three years after filing the complaint and three weeks
before trial. Moreover, as Plaintiffs themselves readily admit, the impetus for the dismissal was
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Defendant’s motion to strike their expert, not some event external to the litigation over which
Plaintiffs had no control, such as a serious medical event. Also of significance is the fact that
Plaintiffs got rid of their original expert, Richard Ernest, and retained a new one for this
case–one who has a different opinion regarding the revolver’s defect. Furthermore, contrary to
Plaintiffs’ suggestion, the fact that they retained new counsel does not count in their favor–at
least not when the change happens so late in the game, so close to trial.
The Court finds that these actions evince an attempt to avoid an adverse ruling and to
wipe the slate clean. See Rogers, 230 F.3d at 874 (upholding a district court’s decision to award
costs when there was evidence of at least some attempt to wipe the slate clean after an initial
setback). Accordingly, the Court will award costs to Defendant.
The question that remains is whether Plaintiffs must pay all or only part of the requested
$10,342.90. The $10,342.90 consist of the following items:
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Richard Ernest deposition attendance fee, $3000

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Transcript of Richard Ernest’s deposition, $1,306.80

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Court reporter fee for deposition of Richard Ernest, $258.69

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Transcript of Mark E. Lee’s deposition, $861.00

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Court reporter fee for deposition of Mark E. Lee, $436.75

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Other deposition court reporter fees, $931.25

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May 3, 2010 Hearing Transcript, $111.50

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Linda White deposition mileage and witness fee, $38.79

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Linda A. Velandra deposition mileage and witness fee, $67.40

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Thomas Temple deposition mileage and witness fee, $107.50

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James Adams deposition mileage and witness fee, $107.50

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Fee for Independent Medical Examination of Plaintiff Mark D. Lee, $1,200

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Cost of photocopies, $1,404.03

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FedEx fees, $461.69
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•

Certificate of Good Standing for James F. Marrion, $25.00

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Certificate of Good Standing for Clem C. Trischler, $25.00

These are the costs as reflected in Defendant’s Affidavit in Support of the motion to recover
costs, Exhibit H. (Doc. # 5-9). Each item is supported by documentation, such as a receipt or
invoice. (See Doc. # 5-10 through # 5-25). The Court has examined each item and its
supporting documentation.
An award of costs under Rule 41(d) is limited to expenses incurred in the first action that
will not be useful in the second action. See Rogers, 230 F.3d at 873 (affirming the district
court’s decision to exclude from an award of costs under Rule 41(d) those fees that remained of
benefit in the second case); Powers v. Chase Bankcard Services, Inc., 2010 WL 4982148 (S.D.
Ohio 2010) (disallowing costs that would necessarily be incurred regardless of the dismissal and
re-filing of the action because that would not decrease the deterrent effect of Rule 41 and would
result in a windfall to the defendant). Plaintiffs object to all of the items–except for the two
Certificates of Good Standing–because, according to Plaintiffs, the expenses sought by
Defendant would be required regardless of the dismissal and refiling. (Doc. # 9, at 8–10).
Specifically, Plaintiffs argue that the costs related to Plaintiffs’ first expert, Richard
Ernest, is useful in the present action, as demonstrated by the fact that “Defendant is utilizing
Mr. Ernest’s deposition as one of the grounds for dismissal in their recently filed motion to
dismiss.” (Id. at 8). Plaintiffs mis-characterize Defendant’s motion to dismiss. Defendant does
not use Ernest’s deposition as a grounds for dismissal. In its motion to dismiss, Defendant
mentions its motion to strike and preclude the testimony of Ernest, which was filed in the first
action and was the catalyst for Plaintiffs’ dismissal. (Doc. # 4-1, at 2). That motion to strike in
turn references Ernest’s deposition. (Id.). But the only reason Defendant mentions the prior
motion to strike is for the purpose of summarizing the procedural history of this case; Defendant
devotes but one sentence to the motion to strike. (Id.). Contrary to Plaintiffs’ assertion, the
deposition of Ernest is not used by Defendant as a grounds for dismissal.
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The Court finds that Ernest’s testimony will be of no use in the present action, especially
in light of the fact that Plaintiffs have hired a new expert. Accordingly, the expenses associated
with the deposition of Ernest shall be awarded to Defendant. Those expenses include Ernest’s
deposition attendance fee, $3000.00; transcript of Ernest’s deposition, $1,306.80; and court
reporter fee for Ernest’s deposition, $258.69. The Court also finds–and Plaintiffs do not
dispute–that the two certificates of good standing will be of no use in the present action.
Defendant is therefore entitled to$50 for these certificates. The total for these expenses is
$4614.49.
The remaining costs shall not be awarded to Defendant. Defendant does not adequately
explain how the remaining costs will be of no use in the present action. Defendant does state
that it “will be required to pay for another Independent Medical Exam of Plaintiff Mark Lee, as
well as depose additional witnesses whose testimony may be relevant due to Plaintiffs’ stated
intention to proceed on a new–and different–theory of defect.” (Doc. # 11, at 9). Even if
Defendant decides to pay for a new medical exam of Plaintiff Lee, it does not follow that the
previous medical exam is now useless. Likewise, the fact that new witnesses may be needed in
the present action does not mean that expenses paid for the earlier witnesses’ deposition
testimony in the earlier action were for naught. In other words, it is possible that these costs
would have been incurred regardless of the dismissal and re-filing, and Defendant has not proved
otherwise.
The last items to consider are Defendant’s FedEx fees and photocopy fees. Although
Defendant has provided an invoice for fees paid to FedEx between December 10, 2008 and
August 5, 2010, there is no information regarding the purpose of each FedEx transaction, and
Defendant has not explained in any of its briefs the nature of those transactions. Similarly, the
photocopy fees invoice is nondescript. Defendant avers in its Reply brief that Defendant will
“be required to incur additional expenses associated with the filing, responding to, and copying
of an entirely new set of pleadings and discovery requests.” (Id.). The Court cannot, from the
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photocopy invoice, determine the purpose of the photocopies and whether or not they will be
useful in the present action. Accordingly, the costs for the FedEx shipments and the photocopies
will not be awarded to Defendant.
IV. Conclusion
Accordingly, the Court DENIES Plaintiffs’ Motion for Remand (Doc. # 8) and
GRANTS IN PART Defendant’s Motion for Costs (Doc. # 5) in the amount of $4614.49. The
Court further ORDERS Plaintiffs to pay costs to Defendant by February 1, 2012, or show cause
why the case should not be dismissed with prejudice for want of prosecution. The Court will
GRANT Defendant’s Motion to Stay the proceedings (Doc. # 5) until costs are paid.
IT IS SO ORDERED.
/s/Dan Aaron Polster 10/24/11
Dan Aaron Polster
United States District Judge

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