Gage E. Services, LLC v. Angelvision Technologies, Inc.

Filing 16

ORDER granting 12 Motion to Dismiss; denying as moot 13 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 5/21/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GAGE E. SERVICES, LLC,
Plaintiff,
vs.
ANGELVISION TECHNOLOGIES,
INC.,
Defendant.

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CIV. 12-4115-KES

ORDER GRANTING
DEFENDANT’S
MOTION TO DISMISS

Defendant, AngelVision Technologies, Inc., moves for a second time to
dismiss the complaint of plaintiff, Gage E. Services, LLC. Gage then moved for
voluntary dismissal with prejudice. Each party opposes the other’s motion.
On January 24, 2013, the court determined that Gage’s state-law claim
was completely preempted by the CAN-SPAM Act and gave Gage 30 days to
amend its complaint. Gage failed to file an amended complaint within the 30
days. As a result, AngelVision filed its renewed motion to dismiss with prejudice
on February 27, 2013. In response, on March 6, 2013, Gage moved for voluntary
dismissal of its complaint with prejudice pursuant to Rule 41(a)(2). The only
issue before the court is whether the motion to dismiss of AngelVision or Gage
should be granted.
In determining whether to grant a motion to dismiss under Rule 41(a)(2),
the court should consider: (1) whether the plaintiff has presented a proper
explanation for the desire to dismiss, (2) whether the defendant has expended
considerable effort and expense in defending the action, (3) whether there has

been excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action, and (4) whether motions for summary judgment or
dismissal have been filed by the defendant. Paulucci v. City of Duluth, 826 F.2d
780, 782 (8th Cir. 1987). See also Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.
1998).
Here, Gage was given 30 days to file an amended complaint and failed to
do so. Gage explains why it is now moving for dismissal, but it puts forth no
explanation as to why it did not move to dismiss the action during that 30-day
period. As a result, AngelVision expended effort and expense to make a second
motion to dismiss. Gage did not file its motion for voluntary dismissal until
AngelVision filed its second motion to dismiss. Both parties agree that the action
should be dismissed with prejudice. After considering all the factors, the court
finds that they weigh in AngelVision’s favor. It is
ORDERED that AngelVision Technologies, Inc.’s renewed motion to dismiss
(Docket 12) is granted.
IT IS FURTHER ORDERED that Gage E. Services, LLC’s motion for
voluntary dismissal (Docket 13) is denied as moot.
Dated May 21, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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