Colon-Cabrera v. Esso Standard Oil Company (Puerto Rico) et al
Filing
101
OPINION AND ORDER - GRANTING Plaintiff's 63 Motion Requesting Leave for Voluntary Dismissal. Signed by Judge Jose A. Fuste on 6/8/2011. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MANUEL A. COLÓN-CABRERA,
Plaintiff
v.
CIVIL NO. 09-2032 (JP)
ESSO STANDARD OIL COMPANY
(PUERTO RICO), et al.,
Defendants
OPINION AND ORDER
Before the Court is Plaintiff’s motion requesting leave for
voluntary dismissal (No. 63), Defendant Esso Standard Oil Co.’s
response (No. 75), and Plaintiff’s reply (No. 80).
stated
herein,
the
voluntary dismissal.
Court
hereby
GRANTS
For the reasons
Plaintiff’s
motion
for
This case is hereby DISMISSED with prejudice
and with the imposition of costs, expenses and attorney’s fees.
By
way
of
background,
Plaintiff
Manuel
A.
Colón-Cabrera
(“Cabrera”) filed the instant complaint on October 6, 2009 pursuant
to the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.
§§ 6972(a)(1)(A) and 6972(a)(1)(B) against Defendants Esso Standard
Oil Co. (Puerto Rico) (“Esso”), Environmental Resource Technologies
Corp. (“ERTEC”) and José Carlos Agrelot-Peña (“Agrelot”). Defendants
ERTEC and Agrelot are no longer parties to this case.
CIVIL NO. 09-2032(JP)
-2-
Among other claims, Plaintiff Cabrera alleged that at all times
relevant to the complaint Esso and/or Exxon Mobil Company (“Exxon”)
were the owners and/or operators of the gasoline, diesel underground
storage tanks and servicing equipment in the Esso Service Station
located at Road No. 2, Km. 29 in the Municipality of Vega Alta,
Puerto Rico (the “Station”).
Plaintiff alleged that Defendant Esso
knew about gasoline leaks from the Station’s underground storage
tanks and product lines since at least 1983, and that Esso knew about
the disposal of used oil and grease onto the ground of the Station
since at least 1978.
Plaintiff alleged that the contamination has
caused considerable damage to his property and that the contamination
has remained unreported and unabated.
On March 16, 2011, Plaintiff filed the instant motion requesting
the voluntary dismissal of the complaint.
Plaintiff states that
Defendant Esso agreed to clean up the existing contamination on the
property.
Plaintiff claims that at the time he filed the complaint
there was a controversy over whether Esso intended to clean up the
contamination on Plaintiff’s property, and that there was “perhaps”
a
“miscommunication”
between
Esso
and
Plaintiff’s
environmental expert over access to the property.
former
Plaintiff denies
that he has ever refused Esso access to the property to clean up the
contamination. Plaintiff requests that the dismissal be without the
imposition of costs, expenses and attorney’s fees arguing that
CIVIL NO. 09-2032(JP)
-3-
Plaintiff has not brought a frivolous litigation and/or unnecessarily
extended it.
In his reply, Plaintiff specifies that he seeks
dismissal of the complaint without prejudice. However, in his motion
for voluntary dismissal, Plaintiff did not request that dismissal be
without prejudice.
The Court ordered the parties to file the terms of their
agreement with the Court (No. 64).
informed
the
Court
(No.
67)
that
On April 5, 2011, the parties
they
were
continuing
their
negotiations in an attempt to reach a settlement and were cautiously
optimistic that such an agreement could be reached to put an end to
all the legal disputes between them.
The parties requested an
extension of time to either inform the Court of such an agreement or
for Esso to submit its response to Plaintiff’s request for voluntary
dismissal.
Plaintiff
On April 20, 2011, Defendant filed a motion stating that
had
rejected
Esso’s
settlement
offer
(No.
69).
On
April 26, 2011, Plaintiff filed a motion to convert the upcoming
Initial Scheduling Conference into a settlement conference because
there was a “strong possibility” that the parties could settle
(No. 73).
A settlement conference was held on May 12, 2011.
At said
conference, Defendant made an offer to settle the case; however,
Plaintiff did not agree to the compensation or the terms of the
agreement (No. 81).
The Court gave the parties an additional term
CIVIL NO. 09-2032(JP)
-4-
of five (5) days to continue settlement negotiations.
The Court set
the dates for the pretrial conference and jury trial for June 6, 2011
and June 20, 2011, respectively.
On May 18, 2011, Plaintiff requested an extension of time
(No. 82) because the settlement negotiations had improved. The Court
granted Plaintiff this extension.
On May 24, 2011 (No. 84),
Plaintiff stated that he had accepted the monetary compensation
offered by Defendant but that the parties were “fine tuning” the
terms of the agreement. Finally, after the Court entered an order
requiring the parties to inform the Court of the status of the
settlement negotiations, Plaintiff again filed a motion (No. 88)
stating that the parties were still fine tuning the terms of the
settlement and requesting that the pretrial conference be converted
into another settlement conference.
This was denied (No. 90).
On June 6, 2011, a hearing was held and the parties attempted
to settle the case.
Plaintiff’s attorney stated that he would
consult his client and a further settlement conference was scheduled
for June 7, 2011. On June 7, 2011, Plaintiff’s attorney informed the
Court that Plaintiff did not agree to the terms of the settlement.
Thereafter, Defendant requested that Plaintiff’s motion (No. 63) for
voluntary dismissal be granted with prejudice and with the imposition
of costs.
Plaintiff requested that dismissal be without prejudice
and without the imposition of costs or attorney’s fees.
CIVIL NO. 09-2032(JP)
-5-
Federal Rule of Civil Procedure 41(a)(2) provides that:
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.
The
First
Circuit
has
stated
that
“[t]he
basic
purpose
of
Rule 41(a)(2) is to freely permit the plaintiff, with court approval,
to voluntarily dismiss an action so long as no other party will be
prejudiced.”
Puerto Rico Maritime Shipping Authority v. Leith,
668 F.2d 46, 50 (1st Cir. 1981) (quoting LeCompte v. Mr. Chip, Inc.,
528 F.2d 601, 604 (5th Cir. 1976)).
The district court has the
responsibility to ensure that such prejudice will not occur.
Doe v.
Urohealth Systems, Inc., 216 F.3d 157, 160 (1st Cir. 2000).
In
deciding whether to allow the voluntary dismissal, courts generally
consider “the defendant’s effort and expense of preparation for
trial, excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, insufficient explanation for the
need to take a dismissal, and the fact that a motion for summary
judgment has been filed by the defendant.”
216 F.3d at 160.
Urohealth Systems,
The Court need not consider each factor.
Id.
In the instant case, Defendant does not oppose Plaintiff’s
request for voluntary dismissal, but it requests that the dismissal
CIVIL NO. 09-2032(JP)
-6-
be with prejudice and with the imposition of costs and attorney’s
fees.
After considering the arguments of the parties and pursuant to
Rule 41(a)(2), the Court will dismiss Plaintiff’s complaint with
prejudice.
The Court will also award costs and attorney’s fees to
Defendant.
As discussed above, Plaintiff has been given numerous
opportunities to settle this case.
The Court granted Plaintiff
several extensions to negotiate the terms of the settlement, and
Plaintiff has refused to do so.
The Court has taken into account
Defendant’s efforts and expenses in preparing this case for trial and
in offering to settle, as well as, the costs associated with
Plaintiff’s repeated delays in deciding whether to settle.
Accordingly, for the reasons stated herein, the Court hereby
GRANTS Plaintiff’s motion for voluntary dismissal.
The Court will
enter a separate judgment dismissing with prejudice Plaintiff’s
claims against Defendant.
The Court hereby awards attorney’s fees
and costs to Defendant.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 8th day of June, 2011.
s/José Antonio Fusté
JOSÉ ANTONIO FUSTÉ
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?