Andrews et al v. Pella Corporation et al

Filing 88

ORDER granting 72 Motion to Dismiss without prejudice; denying 74 Motion to Dismiss with prejudice, and Dismissing the Andrews' claims without prejudice. Signed by Honorable David C Norton on 1/13/15.(elim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
CHRISTY and GREG ANDREWS and
TANYA and GARY CONLAY, on behalf
of themselves and on behalf of all others
similarly situated,
Plaintiffs,
vs.
PELLA CORPORATION,
Defendant.

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No. 2:14-mn-00001-DCN
No. 2:14-cv-00539-DCN

ORDER

This matter comes before the court on plaintiffs Christy and Greg Andrews’ (“the
Andrews”) motion to dismiss without prejudice and defendant Pella Corporation’s
(“Pella”) motion to dismiss with prejudice. For the reasons set forth below, the court
grants the Andrews’ motion, denies Pella’s motion, and dismisses the Andrews’ claims
without prejudice.
I. BACKGROUND
Plaintiffs the Andrews and Tanya and Gary Conlay (“the Conlays”) (hereafter
“plaintiffs”) filed the present action in the Eastern District of Louisiana on February 24,
2014 asserting diversity jurisdiction. On May 22, 2013, plaintiffs filed an amended
complaint, alleging the following eleven causes of action: (1) strict liability,
(2) negligence, (3) breach of express warranty, (4) breach of implied warranties,
(5) negligent misrepresentation, (6) fraud,1 (7) breach of express warranty, (8) design
defect, (9) construction or composite defect, (10) redhibition,2 and (11) declaratory

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“National Class causes of action,” Pl.’s Compl. ¶¶ 58-118.
“Louisiana Sub-Class causes of action,” ¶¶ 119-156.

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relief.3 Prior to transfer to this court, plaintiffs voluntarily dismissed their national class
claims for strict liability, negligence, express warranty, implied warranty, negligent
misrepresentation, and fraud pursuant to Rule 41(a)(1)(A). ECF No. 30. The Eastern
District of Louisiana subsequently dismissed plaintiffs’ state law claim for breach of
express warranty. ECF No. 37. Thus, plaintiffs’ only remaining claims are Louisiana
state law claims for design defect and construction defect under the Louisiana Products
Liability Act, redhibition, and declaratory relief. The United States Judicial Panel on
Multidistrict Litigation transferred the plaintiffs’ cases to this court on February 27, 2014.
Pella requested to inspect the Andrews’ home on numerous occasions; however,
neither Pella nor plaintiffs’ counsel could reach the Andrews. Pl.’s Resp. 1. After a
number of unsuccessful attempts to contact the Andrews, Pella discovered through a
Google search that the Andrews had moved and informed plaintiffs’ counsel of its
discovery. Id. “[Plaintiffs’] counsel has [had] no recent contact with the Andrews” and
does not know the Andrews’ current address. Id. at 1–2.
The Andrews filed the present motion to dismiss without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2) on October 15, 2014 because the Andrews “sold
their home and moved.” Pl.’s Mot. 1. In filing their motion, the Andrews did not waive
their right to bring future claims and asked the court to dismiss the action without
prejudice. In response, Pella filed a cross-motion to dismiss with prejudice under Federal
Rule of Civil Procedure 41(b) on October 17, 2014.
II. STANDARD
Federal Rule of Civil Procedure 41(a)(2) states that “[e]xcept as provided in Rule
41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on
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For both the National Class and Louisiana Sub-Class.

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terms that the court considers proper.” “Unless the order states otherwise, a dismissal
under [Rule 41(a)(2)] is without prejudice.” Id. District courts have the discretion to
grant or deny a motion for voluntary dismissal under Rule 41(a)(2) and “its order will
ordinarily not be reversed except for an abuse of discretion.” Davis v. USX Corp., 819
F.2d 1270, 1273 (4th Cir. 1987) (citing McCants v. Ford Motor Co., 781 F.2d 855, 857
(11th Cir. 1986); Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 895 (4th Cir.
1972)). The Fourth Circuit states:
The purpose of Rule 41(a)(2) is freely to allow voluntary dismissals unless
the parties will be unfairly prejudiced. To fulfill this purpose, Rule
41(a)(2) requires a court order as a prerequisite to dismissal and permits the
district court to impose conditions on voluntary dismissal to obviate any
prejudice to the defendants which may otherwise result from dismissal
without prejudice. In considering a motion for voluntary dismissal, the
district court must focus primarily on protecting the interests of the
defendant.
Davis, 819 F.2d at 1273 (emphasis added) (citing McCants, 781 F.2d at 856; Alamance
Indus. Inc. v. Filene’s, 291 F.2d 142, 146 (1st Cir. 1961)). Although the court must
strongly consider prejudice to the defendant, “prejudice to the defendant does not result
from the prospect of a second lawsuit,” nor will “the possibility that the plaintiff will gain
a tactical advantage over the defendant in future litigation . . . serve to bar a second suit.”
Id. at 1274–75 (internal citations omitted). Thus, a plaintiff’s motion for voluntary
dismissal without prejudice generally should not be denied absent plain legal prejudice to
the defendant. Gross v. Spies, 133 F.3d 914, at *5 (4th Cir. 1998) (unpublished table
decision). In ruling on motions for voluntary dismissal, the court should consider the
following factors: (1) the opposing party’s effort and expense in preparing for trial; (2)
excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation
of the need for dismissal; and (4) the present stage of the litigation. Id. “These factors
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are not exclusive, however, and any other relevant factors should be considered by the
district court depending on the circumstances of the case.” Id.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss
an action due to the plaintiff’s failure to prosecute or to comply with the Federal Rules.4
Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (finding
that a court may, sua sponte, dismiss a case pursuant to Rule 41(b)), reh’g denied, 371
U.S. 873 (1962). “A dismissal with prejudice is a harsh sanction which should not be
invoked lightly in the view of ‘the sound public policy of deciding cases on the merits.’”
Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978) (citing Reizakis v. Loy, 490 F.2d
1132, 1135 (4th Cir. 1974)). The court must balance the policy of deciding cases on the
merits with considerations of judicial administration, applying four criteria: “(1) the
degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice
to the defendant caused by the delay; (3) the presence or absence of a ‘drawn out history
of deliberately proceeding in a dilatory fashion;’ and (4) the effectiveness of sanctions
less drastic than dismissal.” Id. (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.
1976)).
III. DISCUSSION
The Andrews move to voluntarily dismiss their claims without prejudice because
they sold their home. Pella filed a cross motion to dismiss arguing that the court should
dismiss the Andrews’ claims with prejudice for three reasons. First, Pella argues that
because the Andrews previously filed a notice of dismissal under Rule 41(a)(1)(B), the
dismissal is considered an adjudication on the merits and a subsequent dismissal must be

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The standard for dismissal with prejudice under Rule 41(a)(2) is the same as the standard for dismissal
with prejudice under 41(b).

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with prejudice. Def.’s Mot. 6. Secondly, Pella argues that the court should exercise its
discretion to dismiss the action with prejudice under Rule 41(a)(2). Id. Lastly, Pella
argues that the court should grant its motion to dismiss on the merits under Rule 41(b)
because it will suffer prejudice if the Andrews are permitted to resurrect their claims at a
later date. Id. In response, plaintiffs’ counsel argues that Pella will not suffer substantial
prejudice. Pl.’s Resp. 1. Plaintiffs’ counsel further argues that dismissal with prejudice
is a harsh remedy that should not be granted solely because the Andrews moved without
notifying their attorney. Id. at 2.
Plaintiffs’ previously filed a notice of voluntary dismissal pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A) that applied only to their national class action claims
and not the remaining state law claims for redhibition, design defect, construction defect,
and declaratory relief. Therefore, the Andrews’ voluntary dismissal did not operate as an
adjudication on the merits of the claims presently before the court under Rule 41(a)(1)(B)
because the Andrews did not previously dismiss the action “based on or including the
same claim[s]” in the present motion. Fed. R. Civ. P. 41(a)(1)(B).5
Further, dismissal with prejudice is a harsh sanction and Pella has not suffered
unfair prejudice defending the Andrews’ claim to warrant such a harsh sanction. Pella’s
defense of the present action does not rely solely on the Andrews’ claims because the
Conlays are also named plaintiffs. Although Pella made numerous attempts to schedule
an inspection of the Andrews’ home, Pella did not incur the additional expense of
inspection. There is no indication that the Andrews acted in a dilatory fashion for which

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Although Pella argues in its motion that plaintiffs voluntarily dismissed their claims under Rule
41(a)(1)(B), the notice clearly states that plaintiffs’ partial dismissal was made pursuant to Rule
41(a)(1)(A). ECF No. 30.

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they must take personal responsibility. To the contrary, the Andrews simply sold their
home without notifying plaintiffs’ counsel.
IV. CONCLUSION
For the aforementioned reasons, the court GRANTS plaintiffs’ motion to dismiss
without prejudice, DENIES defendant’s cross motion to dismiss with prejudice, and
DISMISSES the Andrews’ claims without prejudice.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
January 13, 2015
Charleston, South Carolina

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