Murray Energy Corporation et al v. Cassidy, Cogan, Chappell and Voegelin, L.C. et al

Filing 76

ORDER granting 73 Motion to Dismiss. Murray Energy Corporation, Murray American Energy, Incorporated, and the Ohio Valley Coal Company are terminated from the case. Signed by Judge Edmund A. Sargus on 7/22/2020. (cmw)

Case: 2:18-cv-00440-EAS-KAJ Doc #: 76 Filed: 07/22/20 Page: 1 of 4 PAGEID #: 884

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MURRAY ENERGY
CORPORATION, et al.,
Plaintiffs,
Case No. 2:18-cv-440
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson

v.
CASSIDY, COGAN, CHAPPEL,
AND VOEGELIN, L.C., et al.,
Defendants.

OPINION AND ORDER
Plaintiffs Murray Energy Corporation, Murray American Energy, Incorporated, and the
Ohio Valley Coal Company (collectively the “Debtors”) have filed a motion to dismiss with
prejudice (ECF No. 73). Plaintiff Robert E. Murray (Plaintiff Murray) does not oppose dismissal
as long as it does not affect his claims (ECF No. 74) and Defendants Cassidy, Cogan, Chappel,
and Voegelin, L.C. and Patrick Cassidy (collectively “Defendants”) do not oppose the motion as
long as dismissal is without prejudice (ECF No. 75). For the following reasons, the motion to
dismiss (ECF No. 73) is GRANTED.
I.
On May 4, 2018, this case was removed to this Court. (See ECF No. 1.) On November 4,
2019, discovery was stayed because the Debtors entered bankruptcy. (See ECF No. 53.) On March
26, 2020, the Debtors filed a motion to dismiss the case with prejudice under Federal Rule of Civil
Procedure 41(a)(2). (See Mot. Dismiss, ECF No. 63.) The Debtors indicated they had filed for
bankruptcy and had evaluated whether to proceed with this case considering the significant

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competing needs for their capital. (Id. at 1.) The Debtors indicated they had decided to dismiss
their claims with prejudice. (Id. at 3.)
Plaintiff Murray opposed dismissal with prejudice. (Murray Resp. at 1, ECF No. 68.)
Plaintiff Murray indicated he did not oppose dismissal of the Debtors’ claims but opposed
dismissal with prejudice because he was concerned it may affect his ability to move forward with
his case against Defendants. (Id. at 3-4.) Plaintiff Murray asserted that “the risk to Mr. Murray of
a preclusive effect far outweighs the Murray Energy Plaintiffs’ reasoning behind their request for
a dismissal with prejudice.” (Id. at 3.) Defendants did not oppose dismissal so long as the
dismissal was with prejudice. (Def.’s Resp. at 1, ECF No. 69.) The Court found Rule 41(a) was
not the correct rule under which to dismiss less than the entirety of the action. (See Op. & Order
at 2, ECF No. 72.) As such, the Court denied the motion without prejudice. (See id.)
The Debtors have filed a second motion to dismiss them from the lawsuit, with prejudice,
this time under Rule 21. (See Mot. Dismiss, ECF No. 73.) The Debtors also ask the Court to order
that such adjudication has no preclusive effect on Plaintiff Murray’s claims against Defendants.
(Id. at 2–3.) Neither Plaintiff Murray nor Defendants oppose dismissal under these terms.
II.
The correct procedural vehicle for removing less than all parties or claims from an action
is Federal Rule of Civil Procedure 21. That rule states, in full: "Misjoinder of parties is not ground
for dismissing an action. On Motion or on its own, the court may at any time, on just terms, add
or drop a party. The court may also sever any claim against a party." Fed. R. Civ. P. 21. When
evaluating a motion for dismissal under Rule 21, courts should consider Rule 41 standards as
guidance for analyzing potential prejudice to the non-movants. Wilkerson v. Brakebill, No. 3:15cv-435, 2017 U.S. Dist. LEXIS 12305, at *2 (E.D. Tenn. Jan. 30, 2017). The purpose of this

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prejudice analysis is “to protect defendants who have put considerable time and effort into
defending a case, only to have the plaintiff pull the rug out from under them by voluntarily
dismissing the action.” Id.(quoting Crozin v. Crown Appraisal Grp., Inc., Nos. 2:10- cv-581, 2:10cv-764, 2012 U.S. Dist. LEXIS 5626, at *2 (S.D. Ohio Jan. 18, 2012) (discussing the prejudice
analysis under Rule 41)).
The Rule 41(a)(2) factors that a court considers in evaluating prejudice include: (1) the
amount of time, effort and expense the defendants have incurred in trial preparation; (2) any
excessive delay and lack of diligence by the plaintiffs in prosecuting the action; (3) insufficient
explanation for the need to dismiss; and (4) whether defendants have filed a motion for summary
judgment. Powell v. Honda of Am. Mfg., Inc., No. 2:06-cv-979, 2008 U.S. Dist. LEXIS 56991, at
*9–10 (S.D. Ohio July 22, 2008) (citing Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir.
1994)).
Here, all of the parties agree that all factors weigh in favor of dismissing the Debtors’
claims against Defendants. All efforts on the part of Defendant at this point will continue to be
used in the remaining proceedings. There is no indication that the Debtors acted with any delay
or lack of diligence and their explanation for the need to dismiss is sufficient. Defendants have
not filed a motion for summary judgment. Thus, the Debtors claims are dismissed with prejudice
and this action has no preclusive effect on Plaintiff Murray’s pending claims. See Fed. R. Civ. P.
21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party”) (emphasis
added); see also Fed. R. Civ. P. 41(a)(2) (“[A]n action may be dismissed at the plaintiff's request only
by court order, on terms that the court considers proper) (emphasis added).

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III.
For the reasons stated herein, the Debtors’ motion (ECF No. 73) is GRANTED. The Clerk
is DIRECTED to terminate the following parties from this case: Murray Energy Corporation,
Murray American Energy, Incorporated, and the Ohio Valley Coal Company.
IT IS SO ORDERED.
7/22/2020
DATE

s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

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