SPV-LS, LLC v. Transamerica Life Insurance Company

Filing 444

ORDER granting 235 Motion to Voluntarily Dismiss Cross-Claims Against the Estate Without Prejudice; denying remainder of the motion. The Estate's counterclaim/crossclaim against Plaintiff, Doc. 92, remains pending for independent adjudication. Signed by U.S. District Judge Lawrence L. Piersol on 12/1/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
*****************************************************************************

SPV-LS, LLC,
CIV 14-4092

Plaintiff,

TRANSAMERICA LIFE INSURANCE

*

COMPANY,

*
*

Defendant and Third-Party

*

Plaintiff,

ORDER

*

NACHMAN BERGMAN,as Trustee of The

*

N Bergman Insurance Trust dated December
18, 2006; MALKA SILBERMAN,as

*
*

Successor Trustee of The N Bergman

*

Insurance Trust dated December 18,2016;

*

LIFE TRADING TRUST,dated August 8,
2007; T-LEG LLC,a/k/a TLEG LLC;

*
*

FINANCIAL LIFE SERVICES,LLC;
*
SPV II LLC; and THE REPRESENTATIVE *
OF THE ESTATE OF NANCY BERGMAN, *
*

Third-Party Defendants.

*

******************************************************************************

Pending before the Court is Plaintiff, SPV-LS, LLC ("SPV") and Third-Party
Defendants, Life Trading Trust, dated August 8, 2007("LTT"), Financial Life Services ("FLS"),

and SPV II, LLC ("SPV 11"), collectively, the "Krasnerman Entities," Motion to Voluntarily
Dismiss Cross-Claims Against the Estate Without Prejudice pursuant to Rule 41(a)(2) of the
Federal Rules of Civil Procedure. Doc. 235.

Rule 41(a)(2) provides in relevant part: "If a defendant has pleaded a counterclaim before

being served with the plaintiffs motion to dismiss, the action may be dismissed over the

defendant's objeetion only if the eounterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice."
Fed. R. Civ. Pro. 41(a)(2).

Here, Third-Party Defendant, The Representative of the Estate of Nancy Bergman ("the

Estate"), filed a counterclaim/crossclaim against Plaintiff on September 18, 2015. Doc. 92 at 1225. On May 4, 2016, the Krasnerman Entities filed the current Motion to Voluntarily Dismiss.
Doc. 235. The Estate did not file an objection to that motion.

Rule 41(a)(2) does not indicate a procedural instruction when a defendant does not file an

objection to a motion to volimtarily dismiss. The rule does provide, however, that "an action
may be dismissed at the plaintiffs request only by court order, on terms that the court considers
proper." Fed. R. Civ. Pro. 41(a)(2). Pursuant to Rule 41(a)(2), the Court grants the Krasnerman
Entities'

Motion

to

Voluntarily

Dismiss,

however, since

the

Estate

filed

its

counterclaim/crossclaim before being served with the current motion, the Estate's
counterclaim/crossclaim against Plaintiff remain pending for independent adjudication.
Additionally, the Krasnerman Entities request that the Court toll the statute of limitations

applicable to the Cross-Claims pending the expiration or resolution of any appeal by the Estate

of the April 14, 2016 Order, declare the Estate's discovery demands null and void, declare the
Estate a non-party, and transfer the Krasnerman Entities' Motion to Compel to the United States
District Court for the Southern District of New York.

The Krasnerman Entities do not cite any legal authority, other than Rule 41(a)(2), nor is

the Court aware of any such authority that would allow the Court to toll the statute oflimitations.

The Eighth Circuit has found that "[a] dismissal without prejudice does not toll a statute of
limitations. Indeed its effect is just the opposite. Once a dismissal without prejudice is entered

and the pending suit is dismissed, it is as if no suit had ever been filed." Garfield v. J.C. Nichols
Real Estate, 57 F.Sd 662 (8th Cir. 1995)(internal citations omitted); see also Wright & Miller 9

Fed. Prac. & Proc. Civ. § 2367(3d ed.)("[I]t seems well settled in the case law that the statute of
limitations is not tolled by bringing an action that later is dismissed voluntarily under Rule
41(a).").

Further, the Estate remains a party to the suit pending the independent adjudication of its
counterclaim/eross claim. Any discovery demands, therefore, carmot be termed a nullity. The
Court finds that neither Rule 41(a)(2) nor any other legal authority allows the above-stated
requests. As such, the requests are denied. Accordingly,
IT IS ORDERED,

1. That the Motion to Voluntarily Dismiss Cross-Claims Against the Estate Without
Prejudice, Doc. 235, is granted;
2. That the Estate's eounterelaim/crossclaim against Plaintiff, Doe. 92, remaining pending
for independent adjudication;
3. That tolling the statute of limitations applicable to such Cross-Claims pending the

expiration or resolution of any appeal by the Estate ofthe April 15, 2016 Order is denied;
4. That declaring the Estate's discovery demands to be null and void is denied;
5. That declaring the Estate a non-party is denied;
6. That transferring the Motion to Compel to the United States District Court for the
Southern District of New York is denied.

Dated this \

day of December, 2016.

BY THE COURT:

Lawrence L. Piersol

United States District Judge
ATTEST:

JOSEPH HAAS,CLERK

(SEAL)

DEPUTY