Ruggieri-Lam et al v. Oliver Block, LLC
Filing
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OPINION AND ORDER granting 44 Motion to Dismiss Without Prejudice. Signed by Judge Geoffrey W. Crawford on 2/8/2016. (esb)
U.S. DISTRICT COURT
DISTRICT OF VERMONT
FILED
UNITED STATES DISTRICT COURT
FOR T H E 1 U I 6 FEB
DISTRICT OF VERMONT
-8 PM 3: 37
CLERK
JOHN G. F. RUGGIERI-LAM and
MARIA L. FREDDURA,
Plaintiffs,
v.
OLIVER BLOCK, LLC,
Defendant.
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BY
O£~y CLERK
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Case No. 5:15-cv-144
OPINION AND ORDER RE:
PLAINTIFFS' MOTION TO DISMISS WITHOUT PREJUDICE
(Doc. 44)
Plaintiffs John G. F. Ruggieri-Lam and Maria L. Freddura move to dismiss this action
without prejudice under Rule 41 (a)(2) of the Federal Rules of Civil Procedure. (Doc. 44.) For
the reasons that follow below, Plaintiffs' Motion to Dismiss Without Prejudice is GRANTED.
I.
Background
On June 23,2015, Plaintiffs brought this diversity action against defendant Oliver Block,
LLC for anticipatory breach of contract arising out of negotiations for the sale of Defendant's
commercial building in Woodstock, Vermont ("the property"). On July 30,2015, the court
denied Plaintiffs' Petition for Writ of Attachment. (Doc. 17.) Plaintiffs, in conjunction with two
additional non-diverse parties, recently filed an action in state court against Defendant based
upon the same subject matter and legal issues.]
The state court plaintiffs are Accordion, LLC ("Accordion") and Stonewall of Woodstock
Corp. ("Stonewall"). Plaintiffs assigned their interest in the property to Accordion, a Vermont
limited liability company. Stonewall, a Vermont corporation, is the primary tenant of the
property. The state court Defendants are Oliver Block, a Vermont limited liability company, and
Stardust 11 TS, LLC ("Stardust"), a New York limited liability company that is currently
asserting title to the property and ownership of the lease. (Doc. 44-4.)
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Plaintiffs seek voluntary dismissal of the instant action so that all disputes related to the
property can be resolved in a single proceeding. Due to incomplete diversity, Accordion and
Stonewall's claims arising out of the same contractual dispute could only be brought in state
court. Plaintiffs allege that these additional parties are necessary for complete relief. Plaintiffs
also submit that their state court complaint asserts new legal theories that present unsettled
questions of state law and are more appropriately addressed before the state court. Finally,
Plaintiffs contend that Defendant will not suffer substantial prejudice if the instant action is
dismissed given the relatively early stage of the proceedings.
Defendant opposes the motion, arguing that: (1) the case is at a late stage of pre-trial
proceedings and Defendant will suffer prejudice if it is dismissed; (2) Plaintiffs' need to dismiss
is inadequate; and (3) Plaintiffs' true motivation is to avoid an imminent adverse ruling.
II.
Analysis
Once an opposing party has filed an answer, a case may only be dismissed on motion and
order of the court. See Fed. R. Civ. P. 41(a)(2). "A voluntary dismissal without prejudice under
Rule 41 (a)(2) will be allowed ifthe defendant will not be prejudiced thereby." D 'Alto v. Dahon
California, Inc., 100 F.3d 281, 283 (2d Cir. 1996) (citation omitted); see Gap, Inc. v. Stone Int'l
Trading, Inc., 169 F.R.D. 584,588 (S.D.N.Y. 1997) (citations omitted) ("the presumption in this
circuit is that a court should grant a dismissal pursuant to Rule 41 (a)(2) absent a showing that
defendants will suffer substantial prejudice as a result").
"Two lines of authority have developed with respect to the circumstances under which a
dismissal without prejudice might be improper." Camilli v. Grimes, 436 F.3d 120, 123 (2d Cir.
2006). The first line "indicates that such a dismissal would be improper if the defendant would
suffer some plain legal prejudice other than the mere prospect of a second lawsuit." Kwan v.
Schlein, 634 F.3d 224, 230 (2d Cir. 2011) (internal quotation marks and citation omitted). This
prejudice typically arises in cases where a defendant is trying to protect his "right to pursue an
existing counterclaim in the same action that a plaintiff is trying to withdraw." Camilli, 436 F.3d
at 124. Here, Defendant has not demonstrated any such prejudice.
The second line of authority requires consideration of various factors in determining
whether a defendant will suffer prejudice. These include: (1) "the plaintiffs diligence in
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bringing the motion"; (2) "any 'undue vexatiousness' on plaintiff's part"; (3) "the extent to
which the suit has progressed"; (4) "the duplicative expense of relitigation"; and (5) "the
adequacy ofplaintiffs explanation for the need to dismiss." Zagano v. Fordham Univ., 900 F.2d
12, 14 (2d Crr. 1990) (citations omitted).
All of the Zagano factors weigh in favor of a dismissal without prejudice. The pending
motion was filed less than six months after the case commenced and promptly after substitute
counsel was retained. There is no evidence that Plaintiffs have acted vexatiously. The suit has
progressed towards trial, but remains in the early stages of discovery. No depositions have been
taken, no dispositive motions have been filed, and no trial date has been scheduled. The ENE
session has not yet occurred. There is very little threat of duplicative relitigation expenses, as the
discovery that has occurred, an exchange of initial disclosures and Defendant's response to one
set of requests to produce, will apply equally to the state court proceeding. See Manners v.
Fawcett Publ'ns, Inc., 85 F.R.D. 63,65 (S.D.N.Y. 1979) (granting voluntary dismissal where
case was one year old and discovery that had occurred would be relevant and useful in second
litigation); contrast Zagano, 900 F.2d at 14 (voluntary dismissal properly denied where case had
been pending for over four years, "extensive discovery had taken place," and motion filed when
trial was less than ten days away and counsel had expended great resources in preparation).
The court is also convinced by the adequacy of Plaintiffs' explanation for the need to
dismiss, particularly that complete relief is not available here as the case currently stands. There
is no reason why there should be two cases with the same subject matter and legal issues pending
before two different courts.
For the reasons stated above, Plaintiffs' Motion to Dismiss Without Prejudice (Doc. 44)
is GRANTED.
Dated at Rutland, in the District of Vermont, this 8th day ofFebruary, 2016.
~
Geoffrey . Crawford, Judge
United States District Court
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