CARROLL et al v. E-ONE, INCORPORATED et al
MEMORANDUM SIGNED BY HONORABLE J. CURTIS JOYNER ON 9/6/16. 9/8/16 ENTERED AND COPIES MAILED, E-MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KENNETH CROSSWHITE, ROY FOSTER,
CHARLES HOTTINGER, LAWRENCE
SHELDRAKE, RICHARD SHELTRA,
KEVIN STUART, CHRISTOPHER TURNER,
ROBERT WELCH, WILLIAM WHETZEL and
: CIVIL ACTION
: NO. 15-CV-0562
E-ONE, INCORPORATED, PIERCE
MANUFACTURING, INC., SEAGRAVE FIRE :
APPARATUS, LLC, and FEDERAL SIGNAL :
MEMORANDUM AND ORDER
September 6, 2016
This civil action has been brought before this Court on
Motion of Defendant Federal Signal Corporation for Costs and Fees
(Doc. No. 68).
For the reasons which follow, the Motion shall be
stayed until such time as an evidentiary hearing may be
This case, which was originally filed in the Court of Common
Pleas of Philadelphia County on January 26, 2015, was commenced
by a number of current and former firefighters in the District of
Columbia Fire Department to recover (under theories sounding in
negligence and strict liability) for what they alleged was noiseinduced hearing loss caused by the Defendant’s emergency sirens.1
Defendants removed this matter to this Court on February 5, 2015
and after denial of motions to remand and to dismiss, the parties
proceeded to take discovery beginning in or around May, 2015. On
October 21, 2015, Plaintiff Charles Hottinger voluntarily
dismissed his claims against all of the defendants.
on or about March 2, 2016, Plaintiffs voluntarily dismissed their
claims against all of the defendants except for Federal Signal
Next, on March 28, 2016, the claims of Plaintiffs
Kenneth Crosswhite and Lawrence Sheldrake were voluntarily
dismissed against what was then the remaining defendant - Federal
Finally, on May 31, 2016, Plaintiffs filed a Notice of
Voluntary Dismissal by all Plaintiffs as to all Parties which
purported to mark the claims as “being dismissed without
prejudice as to all parties in this action.”
One month later, Defendant Federal Signal filed the instant
Motion for Costs and Fees challenging the plaintiffs’ filing of
their Notice of Voluntary Dismissal without prejudice and seeking
to recover the attorneys’ fees and other attendant costs that it
has incurred in defending this lawsuit.
Plaintiffs oppose the
In addition to Federal Signal Corporation, Plaintiffs also asserted
negligence and strict liability claims against E-One, Inc., Pierce
Manufacturing, Inc, and Seagrave Fire Apparatus, LLC, the manufacturers of
various fire trucks and apparatus and other emergency vehicles which were
alleged to have incorporated Federal Signal’s sirens into its products.
Defendant’s request for fees and costs but are agreeable to
dismissing this matter with prejudice.
Voluntary dismissal of actions is governed by Fed. R. Civ.
Subsection (1) of that Rule reads as follows:
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e),
23.1(c), 23.2, and 66 and any applicable federal
statute, the plaintiff may dismiss an action without a
court order by filing:
(i) a notice of dismissal before the opposing
party serves either an answer or a motion for
summary judgment; or
(ii) a stipulation of dismissal signed by all
parties who have appeared.
(B) Effect. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if
the plaintiff previously dismissed any federal- or
state-court action based on or including the same
claim, a notice of dismissal operates as an
adjudication on the merits.
Thus, Rule 41(a)(1) makes clear that a plaintiff is permitted to
voluntarily dismiss without a court order only where all of those
parties who have appeared in the action have signed a stipulation
to dismiss or before an opposing party has served either an
answer or a motion for summary judgment.
See generally, In re
Bath & Kitchen Fixtures Antitrust Litigation, 535 F.3d 161, 165
(3d Cir. 2008)(“The Rule [41(a)(1)(A)(i)] ‘affixes a bright-line
test to limit the right of dismissal to the early stages of
litigation...If the defendant has served either an answer or a
summary judgment motion, it has [reached the point of no return];
if the defendant has served neither, it has not.’”).
answers were filed by the defendants in this case and further,
that discovery had closed, Plaintiffs no longer had the option to
voluntarily dismiss by filing a notice to that effect; they were
required to obtain a court order or get all of the defendants to
stipulate to dismissal.
See also, Transystems Corporation v.
Hughes Associates, Inc., Civ. A. No. 1:14-CV-1541, 2016 U.S.
Dist. LEXIS 85548 at *10 (M.D. Pa. June 30, 2016)(stating that
“when litigation has proceeded as far as this lawsuit, the
plaintiff does not have an untrammeled right to abandon the
Instead, at this juncture: ‘an action may be dismissed
at the plaintiff’s request only by court order, on terms that the
court considers proper.’”)
Consequently, Plaintiffs here clearly
erred in unilaterally filing a notice addressed to the Clerk of
Court asking that their claims be marked as being dismissed
without prejudice as to all of the parties in this action.
Instead, the proper procedure for voluntarily dismissal here
is that outlined in Rule 41(a)(2):
(2) By Court Order; Effect. Except as provided in Rule 41
(a)(1), an action may be dismissed at the plaintiff’s
request only by court order, on terms that the court
considers proper. If a defendant has pleaded a counterclaim
before being served with the plaintiff’s motion to dismiss,
the action may be dismissed over the defendant’s objection
only if the counterclaim can remain pending for independent
adjudication. Unless the order states otherwise, a
dismissal under this paragraph (2) is without prejudice.
A motion for voluntary dismissal under Fed. R. Civ. P.
41(a)(2) lies within the sound discretion of the district court.
Citizens Savings Association v. Franciscus, 120 F.R.D. 22, 24
(M.D. Pa. 1988)(citing Ferguson v. Eakle, 492 F.2d 26, 28 (3d
The purpose of the grant of discretion under Rule
41(a)(2) is primarily to prevent voluntary dismissals which
unfairly affect the other side, and to permit the imposition of
curative conditions to avoid such prejudice.
Maxim Crane Works,
LP v. Smith Transportation Services, Civ. A. No. 15-597, 2016
U.S. Dist. LEXIS 95598 at *7 (W.D. Pa. July 22, 2016);
Transystems, supra,(citing Charles A. Wright & Arthur R. Miller,
9 Federal Practice & Procedure Civil 2d §2364, n. 19); Shulley v.
Mileur, 115 F.R.D. 50, 51 (M.D. Pa. 1987).
Thus, inasmuch as the
Rule provides that the dismissal be “on terms that the court
considers proper,” the Court must exercise, not abdicate, its
Integrated Service Solutions, Inc. v. Rodman, Civ.
A. No. 07-3591, 2009 U.S. Dist. LEXIS 36182 at *35 (E.D. Pa.
April 29, 2009).
“That said, ‘Rule 41 motions should be allowed
unless the defendant will suffer some prejudice other than the
mere prospect of a second lawsuit.’” Hayden v. Westfield
Insurance Co., No. 13-4523, 586 Fed. Appx. 835, 842 (3d Cir.
Sept. 18, 2014)(quoting In re Paoli R.R. Yard P.C.B. Litigation,
916 F.2d 829, 863 (3d Cir. 1990)).
In so exercising this discretion, it therefore first
“becomes necessary to decide the presence or extent of any
prejudice to the defendant.”
(3d Cir. 1974).
Ferguson v. Eakle, 492 F.2d 26, 29
In determining the extent of potential prejudice
and deciding whether a dismissal under Rule 41(a)(2) should be
with prejudice, it is proper to consider: (1) whether the expense
of a second litigation would be excessive and duplicative; (2)
how much effort and expense has been expended by the defendant in
preparing for trial of the current matter; (3) the extent to
which the current suit has progressed; (4) the plaintiff’s
diligence in filing the motion to dismiss; and (5) whether the
attempt at dismissal is designed to evade federal jurisdiction
and/or frustrate the purpose of the removal statutes.
v. Pierce, Civ. A. No. 15-269-GMS, 2016 U.S. Dist. LEXIS 113212
at *2 (D. Del. Aug. 24, 2016); Maxim Crane, supra, at *7-*8; J.K.
v. CSX Transportation, Civ. A. No. 14-729, 2015 U.S. Dist. LEXIS
83788 at *8 (E.D. Pa. June 29, 2015)(citing Peltz v. Sears,
Roebuck & Co., 367 F. Supp. 2d 711, 715 (2005)).
dismissal is made with prejudice, courts typically attach no
conditions to the dismissal, including an award of attorneys’
fees and costs, unless there are exceptional circumstances such
as where Plaintiffs’ counsel has abused the judicial process and
acted in bad faith.
Maxim Crane, at *8(citing Colombrito v. The
Holy Spirit Ass’n., 764 F.2d 122, 133-35 (2d Cir. 1985);
Arlington Indus. v. Bridgeport Fittings, Inc., No. 06-cv-1105,
2015 U.S. Dist. LEXIS 41626 (M.D. Pa. March 31, 2015); John Evans
Sons, Inc. v. Majik-Ironers, Inc., 95 F.R.D. 186, 191 (E.D. Pa.
1982); Selas Corp. Of Am. V. Wilshire Oil Comp. Of Tex., 57
F.R.D. 3, 7 (E.D. Pa. 1972)); In re Asbestos Products Liability
Litigation (No. IV), MDL No. 875, 2010 U.S. Dist. LEXIS 48156 at
*34 (E.D. Pa. May 14, 2010).
In application of the preceding legal principles to the
facts of this case, we note that this action was filed more than
a year-and-a-half ago and that while discovery closed in June,
2016 and the deadline for filing motions for summary judgment
passed on July 8, 2016, no motions were filed, presumably because
the within notice of voluntary dismissal was filed on May 31,
While these facts certainly militate in favor of granting
a Rule 41(a)(2) dismissal, it does not end the matter.
Indeed, Defendant asserts that Plaintiffs’ counsel has a
“habit of routinely filing baseless claims and often times
dismissing those claims only after Federal Signal is forced to
fully work them up.” (Defendant’s Reply Memorandum of Law in
Support of Motion for Costs and Fees) Defendant further avers
that had Plaintiffs’ counsel undertaken any investigation prior
to filing this suit, it would have learned that most of the
plaintiffs’ claims were long ago time-barred and that one of the
plaintiffs did not suffer from noise-induced hearing loss at all.
Defendant has produced evidence which supports these assertions
to which Plaintiffs’ counsel’s response is essentially that they
do not oppose a dismissal of this matter with prejudice.
we agree that dismissal of this matter should be with prejudice,
we believe that Defendant has put forth sufficient evidence to
warrant further consideration of its argument.
That having been
said, however, we cannot grant Defendant relief on the basis of
the record now before us.
For this reason, we shall direct the
parties to contact the undersigned’s Deputy Clerk to schedule an
evidentiary hearing in this matter at which time the parties
shall be invited to produce additional evidence in support of
their respective arguments in favor of and in opposition to the
Defendant’s request for sanctions in the form of its attorneys’
fees and costs.
In the meantime, the motion for costs and fees
shall be stayed until such time as the hearing may be held and
the Court shall be in a position to issue a decision that is
based upon a fully-developed record.
An order follows.
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