In the Matter of the Complaint of Columbia Leasing L.L.C. as Previous Owner, and Columbia Coastal Transport, L.L.C., as Present Owner and Previous Owner Pro Hac Vice of the Barge Columbia Houston Offi v. NONE

Filing 90

ORDER Granting 79 Motion to Voluntarily Dismiss. For the reasons set forth above, the Mullens' motion for voluntary dismissal pursuant to Fed. R. Civ. P. Rule 41(a) (2) is GRANTED, as there is no unfair prejudice to Ceres. Therefore, the Mullens' crossclaims against Ceres are DISMISSED WITHOUT PREJUDICE. Such dismissal brings this action to an end. Signed by District Judge Mark S. Davis and filed on 2/20/14. Copies distributed to all counsel of record 2/20/14. (ldab, )

UNITED

STATES

DISTRICT

EASTERN DISTRICT

COURT

OF VIRGINIA

Norfolk Division

IN THE MATTER OF THE

COMPLAINT OF

COLUMBIA LEASING L.L.C.,
AS PREVIOUS OWNER,
COLUMBIA COASTAL TRANSPORT, L.L.C.,
AS
PRO

PRESENT OWNER AND
HAC VICE

OF THE

PREVIOUS

OWNER

BARGE

COLUMBIA HOUSTON, OFFICIAL NO.
AND ITS EMPLOYEE,

694869,

LARRY WARD,

Plaintiff-Petitioners,
Civil Action No.

JOHN R. MULLEN,
KAREN MULLEN,

2:12cv678

II AND

Claimants,

CERES MARINE TERMINALS, INC, AND
CERES MARINE TERMINALS INCORPORATED,
Claimants.

OPINION AND ORDER

This matter is before the
R.
R.

Mullen,
Civ.

P.

injury and
Terminals,

II and Karen Mullen
41(a) (2),
loss
Inc.

of

Court on

a motion filed by

("the Mullens")

requesting

dismissal

consortium crossclaims
and

Ceres

Marine

(collectively "Ceres").

ECF No.

record of

a

this matter as

whole,

79.

pursuant to Fed.

of

their

against

Terminals
After

the Court

personal

Ceres

a hearing on the instant motion is unnecessary,

Marine

Incorporated

examination
has

John

of

the

determined that

as the facts and

legal

arguments

are

adequately

presented,

and

the

decisional

process would not be aided significantly by oral argument.
R.

Civ.

P.

78(b);

discussed below,
I.

The

E.D.

Ceres.1

Loc.

the Mullens'

Civ.

R.

7 (J) .

For

the

Rule 41 motion is GRANTED.

filed

their

personal

Court

Circuit

against

several

Subsequently,

("Limitation

on December 13,

Plaintiffs")

filed

injury

defendants,

2012,

in

lawsuit

this

February 25,

2013,

Court

this Court issued an

to the Limitation of Liability Act,
staying activity

in

No.

February

10

2013,

(amended

the Mullens

asserted

their

Plaintiffs.

that

the

personal

any questions
be

tried

[their]

damages

46 U.S.C.

2013,

ECF

answered Limitation

ECF No.

owners]

28,

be

13.

of

by

injury

a

a

trial

set

by

by
a

or

11) .

On

against

expressed

Court

jury

ECF

April

their

in
by

et seq.,

in

5,
and

Limitation

of

State

1.

pursuant

Complaint

liability

jury

trial

ECF No.

lawsuit.

Plaintiffs'

claims

exoneration

Complaint

§ 30501,

Court

No.

The Mullens

including

injunction,

Portsmouth Circuit

in

the vessel owners

seeking exoneration from or limitation of liability.
On

reasons

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mullens

Portsmouth

Va.

Fed.

"desire

the

[vessel
and

State

that

Court,

1 The facts of this case are more fully described in the Court's
Opinion and Order issued on January 10, 2014.
In re Columbia Leasing,
L.L.C.

v.

Mullen,

No.

2:12cv678,

2014

U.S.

Dist.

LEXIS

3307

(E.D.

Va.

Jan. 10, 2014).
The relevant portions are repeated here to provide an
appropriate background for the disposition of this matter.

pursuant

to

the

§ 1333(1)."

Saving

in

Suitors

Clause

of

33

U.S.C.

Id^ at 7.

On April 11,

Court,

to

2013,

Ceres filed an Answer and Claim in this

seeking contribution and indemnity from the vessel owners

the

event

that

jointly liable
11.

On

"Ceres

for

April

and

[the

the Mullens[']

23,

2013,

the

vessel

owners]

injuries."

Mullens

are

ECF No.

amended

found

14 at

their

%

answer,

asserting "a maritime personal injury Crossclaim" and "a loss of
consortium

[Cross]claim"

against

maintaining

their "desire

to

[Ceres]

try

in

this

their claims

Court,

against

pursuant to the Saving to Suitors Clause of 33 U.S.C.
...

May

in

9,

the

Portsmouth

2013,

Ceres

Circuit

filed

a

Court."

motion

crossclaims for failure to state a

On

Modify

June

7,

2013,

Injunction,
28

U.S.C.

motion,

Mullens

to

§ 1333."

to

claim.

Mullens

"pursuant

provided by
the

the

ECF

dismiss
ECF No.

filed

a

their saving
ECF No.

filed proposed

No.

31.

19

[Ceres],

§ 1333(1),
at

the

13.

On

Mullens'

21.

Motion

to

but

to

Lift

suitors

or

rights

Along with their

stipulations,

attempting

to

"effectively protect the

[Limitation Plaintiffs']

limitation of

while permitting the Mullens to pursue

their

Supp.

liability,

remedies

at

in

1-2,

Plaintiffs

stipulations,

Portsmouth

ECF

nor

No.

Ceres

arguing

Circuit

32.

Mullens'

However,

agreed

that

Court."

rights to seek

"the

neither

to

Mullens'

the

stipulation

Mem.

in

Limitation
proposed

procedure

is

completely

inapt,"

Ceres'

Br.

in

Opp.

at

5,

ECF

No.

37,

and

observing that Limitation Plaintiffs would still be exposed to a

contribution/indemnity
fund,

claim

because the Mullens

by

Ceres,

beyond

any

"do not stipulate that

seek to enforce any judgment against

of

they will

. . . Ceres

that

is

in

excess

Limitation Pis.'
the

decision

court

is

Mullens

of

value

Br. in Opp. at 8,

whether

"*one

the

of

did not

to

allow

discretion

stipulate

a
in

that

the

ECF No.

claimant
every

38.2

fund,"

Thus, because

proceed

case,'"

in

state

and because

not

not

for any amount

limitation

to

they would

limitation

seek to

the

enforce

any judgment against Ceres for any judgment amount in excess of
the limitation fund - thereby exposing Limitation Plaintiffs to
Ceres'

contribution/indemnity

discretion

to

retain

action in this matter.
U.S.

438,

On

449,

454

August

address

-

the

the

Court

exercised

its

limitation/exoneration

Lewis v. Lewis & Clark Marine,

Inc.,

531

(2001).

28,

2013,

for Summary Judgment,

from or

and

claim

ECF No.

limitation of

2 "The district

Limitation
46,

have

filed

a

Motion

on their claim for exoneration

liability,

courts

Plaintiffs

pursuant

to

the

Limitation of

jurisdiction over actions

arising

under the Limitation Act, and they have discretion to stay or dismiss
Limitation Act proceedings to allow a suitor to pursue his claims in
state

court.

If

the

district

court

concludes

that

the

vessel

owner's

right to limitation will not be adequately protected - where for
example a group of claimants cannot agree on appropriate stipulations
or

there

is

uncertainty

concerning

the

adequacy

of

the

fund

or

the

number of claims - the court may proceed to adjudicate the merits,
deciding the issues of liability and limitation."
Lewis v. Lewis &
Clark Marine,

Inc.,

531 U.S.

438,

454

(2001).

Liability

Act,

Plaintiffs'

46

summary

September

17,

Motion

Sever

to

On

Issue

issues

saving to

protected,"

ECF

No.

limitation

exoneration

motion

October

of
may

be

63.

On

(rather

78.

Having
the

the

claims

Mullens'

Ceres'

negligence

10,

the

mere

on

claim

Id.

"so

that

court,

and

all
[the

Ceres may be

having

fully

determined

was

Limitation

against

that

appropriate

Plaintiffs

claims,

the

and

Plaintiffs,

sole

any

dismissed

as

well

Plaintiffs,

liable to the Mullens

The

ECF

from

Court

Limitation

36.

a

for exoneration from,

Court

Limitation

at

62,

on

filed

Motion for Summary Judgment.

Plaintiffs are not

claims."

review

Mullens

2014,

limitation)

their

against

for

relation to

request

Mullens

contribution

[Limitation]

in

Plaintiffs'

than

the

state

January

exonerated

liability to

in

Limitation

ripe

ECF No.

liability,

of,

seq.

2013,

tried

granted Limitation Plaintiffs'
No.

2,

rights

et

became

Liability,

suitors

considered Limitation
or

§ 30501,

judgment

2013.

non-limitation
Mullens']

U.S.C.

as

"as

for their

remaining

claims

before this Court are the Mullens' crossclaims against Ceres.

On

January

20,

2014,

ten

days

after

summary judgment to Limitation Plaintiffs,
instant motion,
their

ECF No.

crossclaims

79,

against

requesting

[Ceres],

the

Court

granted

the Mullens filed the

that

without

the

Court

prejudice,

"dismiss
so

that

the Mullens may pursue their saving to suitors remedies against
Ceres

in

an

action

previously

filed

in

Portsmouth

Circuit

Court," ECF No. 80.
3,

2014,

Ceres

arguing

unfair

a

jury

84.

"the

Mullens'

prejudice"

unjustified

and that

the

delay

Court

caused

could protect

saving to suitors rights by "simply grant[ing]

trial

Mullens

that

legal

the Mullens'

Ceres filed its response brief on February

in

this

proceeding."

filed their reply brief

Therefore,

ECF

83

at

February

on

No.

2,

4,

2014.

them

9.

The

ECF No.

the motion has been fully briefed and the matter

is now ripe for decision.
II.

The

action
terms

Federal

may

be

that

41(a)(2);

Rules

STANDARD

of

dismissed

the

court

see also

at

OF REVIEW

Civil

the

Procedure

[claimant's]

considers

Fed.

R.

provide

Civ.

request

proper."
P.

41(c)

Fed.

claim").

"The

allow voluntary dismissals
prejudiced."
1987) .

denied

absent

plain

Ellett

Bros.,

Inc.

2001)

1036 (4th Cir.
for

voluntary

factors

such

unless

Davis v. USX Corp.,

A "motion to

(4th Cir.

purpose

the

Civ.

R.

[Rule

P.

Rule

41

crossclaim,

41]

parties

on

or

is

will

819 F.2d 1270,

freely

be

1273

to

unfairly
(4th Cir.

voluntarily dismiss a claim should not be

legal

v.

U.S.

prejudice
Fid.

(citing Andes

1986)).

'the

to

& Guar.

v.

Versant

the

[opposing

Co.,

275

Corp.,

F.3d

788

party]."
384,

F.2d

388

1033,

In determining whether to grant a motion

dismissal,

as

of

"an

...

(stating that

also "applies to a dismissal of any counterclaim,
third-party

that

"a

opposing

district

party's

court

effort

should

and

consider

expense

in

preparing

for

trial,

excessive

the part of the movant,

for

a

voluntary

litigation.'"

(4th

Cir.

Inc.,

77

prospect

lack of

as

well

as

'the

Miller v. Terramite Corp.,

F.3d

(quoting

354,

marks
of

and

a

358

Phillips

(10th Cir.

omitted)).

second

114

USA,

1996)

be

gained

by

on

nor

refiling

v.

Allflex

of
539

USA,

citations

and

"[n]either

mere

possibility

the

the
that

[the

sufficient

prejudice to deny a motion for voluntary dismissal."

Teck Gen.

(E.D. Va.

1998)

LEXIS

App.

decision);

Petroleum Corp.,

prejudice

471,
Davis,

at

28

*5

(4th

Cir.

F.

133

1998)

Supp.

2d

F.3d 914,

989,
1998

(unpublished

991
U.S.

table

819 F.2d at 1275).

Mullens

is

court,

(citing Gross v. Spies,

III.

The

state

such as that which
are

P'ship v. Crown Cent.

in

stage

F. App'x 536,

(internal

However,

lawsuit,

present

Inc.

moving party] will gain a tactical advantage,
would

diligence

and insufficient explanation of the need

dismissal,'

2004)

quotation

delay

argue

appropriate

DISCUSSION

that

at

"voluntary

this

stage

of

dismissal

the

without

litigation"

and

assert that "Ceres will not be unfairly prejudiced if the Court
grants

the

disagrees,
removing

motion."
arguing
the

case

Mullens'
that,
to

by

83.

at

7,

effectively

federal

intentionally prejudiced Ceres'
9, ECF No.

Br.

court,

rights."

ECF

No.

preventing
"the

Ceres'

80.
Ceres

Mullens

Br.

Ceres
from
have

in Opp.

at

Ceres also contends that the Court could satisfy

the Mullens'

right to a jury trial by "simply grant[ing]

jury trial in this proceeding."

them a

Id.

A. Ceres' Effort and Expense in Preparing for Trial

Ceres

Dismiss

asserts

and

spent

that

it

"has

spent

briefed

time

and

considerable

litigating in federal court."

"because the

fully

Id.

at

6.

a

Motion

attorneys'

Thus,

to

fees

Ceres contends,

parties have fully briefed dispositive motions and

substantial resources taking federal court discovery,

Mullens'

assert,

Motion

however,

should

be

denied."

Id.

7-8.

The

Mullens

that "[m]ost of the federal discovery conducted

by Ceres can be used in the Mullens'

against Ceres."

at

the

parallel state court action

Mullens' Br. at 10, ECF No. 80.3

Ceres describes their litigation efforts as follows:

•

"participated in the Rule 30(b)(6)

Coastal
Ward,

•

Transport,

as

well

as

deposition of Columbia

the

depositions

of

Larry

Sam Moulton and John Mullen;"

"responded
Mullens'

(and

supplemented

Interrogatories

and

its
Request

responses)
for

to

the

Production

of

Documents;"

•

"submitted its Rule 26(a)(1)

disclosures and supplemented

them twice;"

•

"served the Mullens with Interrogatories and Request for
Production of documents;"

•

"subpoenaed the records of all of Mullen's physicians;"

•

"retained expert witnesses and worked with those experts

3

Ceres

does

not

contest

the

Mullens'

assertion

that

most

federal court discovery can be used in the state court action,
8

of

the

to prepare their reports for production pursuant to Rule
26(a)(3);"
•

"attend[ed]

a Settlement Conference;"

•

"filed and fully briefed a Motion to Dismiss;" and

•

"opposed

the

Mullens'

Motion

to

Lift

or

Modify

the

Ceres

has

Injunction . . . and Motion to Sever."

Ceres'

Br. in Opp. at 6 n.2, ECF No. 83.

The

Court

expended in
not

all,

acknowledges

litigating in this

of

the

discovery,

used by Ceres

in

regardless

the

Ceres'
Opp.

of

defending

action

9,

ECF No.

with

few

like

under

3:09cv681,
2010) .

over

to

Rule

to

might

Dist.

court," Davis,

of

-

as

a

agrees that most,

and

likely

the

Court

filed

failure

Astrop

v.

be

notes

state

work

Virginia

be

of

is

claim,

Corp.,

and

in

court

No.

(E.D. Va. Apr.

"the

-

that

Br.

state a

Eckerd

litigation will

819 F.2d at 1276,

in

to

at *9

[Mullens' ] cause

a

if

claims,

Ceres'

in

"demurrer

of

should

the Mullens'

for

much

effort

Dismiss,"

be

LEXIS 42085,

because

the

to

also

dismiss

date during this

litigation

be

Furthermore,

12(b)(6),"

Accordingly,

but

itself against

modifications,

2010 U.S.

expended to

Court,

. . . Motion

83,

essentially a motion

considerable

could

forum.

"fully briefed

at

the

29,

resources

easily carried
action

in

state

this factor favors the Mullens.

B. Diligence or Delay by the Mullens

The Mullens "submit that they have been diligent" in their
efforts

to

return

to

state

court

"since

June

7,

2013,"

and

observe that they filed the

instant motion

"within ten days of

the Court's grant of summary judgment in favor of the limitation
plaintiffs."

Mullens'

arguing

that

the

seeking

dismissal,"

Br.

Mullens

at 7,
have

which

ECF No.

80.

exercised

"caused

Ceres

Ceres disagrees,

"unjustified
to

lose

right to remove the case to federal court."

its

delay

in

statutory

Ceres'

Br.

in Opp.

that

the

Mullens

at 2, ECF No. 83."
A

have

careful

review

of

the

record

reveals

consistently maintained their "desire to

against
U.S.C.

[Ceres], pursuant to the Saving to Suitors Clause of 33
§

Answer,

try their claims

1333(1),

Claims,

...

in

the

& Crossclaims

Portsmouth

at

13,

Circuit

ECF No.

4 Ceres alleges that the Mullens asserted

19.

Court."

Am.

The Mullens'

in the state court

action "frivolous" claims against "two non-diverse defendants, Larry
Ward ('Ward') and McAllister Towing ('McAllister')," who both "filed
demurrers on the theory that neither of them had anything to do with
Mullen's accident."
Ceres' Br. in Opp. at 3, 4, ECF No. 83.
Ceres
further contends that the Mullens strategically "blocked removal by

making unwarranted claims against [the]
state

court

case."

Id.

at

7.

The

non-diverse defendants in the
Court

expresses

no

opinion

regarding the Mullens' claims against McAllister, as those claims were
not presented to the Court for consideration.
However, the Court
notes that the Mullens' claims against Ward were far
The Mullens brought suit against Ward as "an agent

from frivolous.
of the vessel,
. . . pursuant to the General Maritime Law of the United States and 33
U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act,
33 U.S.C.S 901, et seq."
Am. Answer, Claims, & Crossclaims at 7, ECF
No. 19.
The grounds for the Mullens' claims against Ward included a
breach of the vessel owners' "duty to ensure that a safe means of
access is provided for longshoremen coming to work on [the] vessel."
Mullens' Br. in Opp. at 15, ECF No. 55.
In support, the Mullens cited
authority from several circuits imposing such a duty on shipowners.
Although "the Court [was] not persuaded by the cases cited by the
Mullens," In re Columbia Leasing L.L.C., 2014 U.S. Dist. LEXIS 3307,
at *22-23, the Court cannot agree that the Mullens' claims against
Ward were "frivolous" or "unwarranted," Ceres' Br. in Opp. at 4, 7,
ECF No.

83.

10

motion

to

lift

or

modify

the

Court's

previously-issued

injunction, as well as the motion to sever the liability issue
from the other issues in the proceeding,

adequately informed the

Court and the parties of their continuing desire to pursue their

claims in their chosen forum.

The instant motion was promptly

filed

summary

after

the

Plaintiffs.
evidence

of

the

favors

Court

granted

Accordingly,

because

of "excessive delay and

[Mullens],"

Miller,

114

judgment

there

lack of

F.

to

Limitation

appears

to

diligence

App'x

at

on

539,

be

no

the part

this

factor

the Mullens.

C. Sufficiency of the Mullens'

Aside

unfairly

from the

Mullens'

prejudiced

by

a

argument

voluntary

Explanation

that

Ceres

dismissal

of

would

the

not

be

Mullens'

crossclaims against Ceres,

the Mullens explain that dismissal is

necessary

to

to

allow

them

"pursue

their

saving

to

remedies against Ceres in state court before a jury."
Br. at 7, ECF No. 80.

precedent,"

assert

that,

liability proceeding,
claimants
remedies,
in

should

The Mullens,

be

"in

the

Mullens'

relying upon "Fourth Circuit

context

of

a

limitation

once concursus is no longer necessary,
permitted

even after the parties

litigating before

suitor

the

to

pursue

have

their

state

expended time

admiralty court."

Id.

at

of
the

court

and effort
11.

Ceres

responds that "the Mullens offer no valid reason for dismissal"

11

because the Court could "simply grant them a jury trial in this
proceeding."

Ceres' Br. in Opp. at 2, 9, ECF No. 83.

The Supreme Court has recognized the "tension

between

the

Saving

to

Suitors

clause

and

the

[that]

exists

Limitation

Act.

One statute gives suitors the right to a choice of remedies,
the

other

statute

gives

vessel

limitation of liability in
448.

Accordingly,

"jurisdiction

over

owners

federal

court."

although

actions

federal

arising

the

right

Lewis,

courts

under

the

to

531

have

and
seek

U.S.

at

exclusive

Limitation

Act,"

they also have the "discretion to stay or dismiss Limitation Act

proceedings

to

allow

a

suitor

to

pursue

his

claim

in

state
[is]

court," as long as "the vessel owner's right to limitation
adequately protected."
observed

that

preserve,

Id.

"[s]uch

where

At least one admiralty treatise has

discretion

possible,

the

should

be

shipowner's

exercised

rights

under

to

the

Limitation of Liability Act and the suitor's rights to a common

law remedy in the common law courts under the Judiciary Act of
1789."

3 Benedict on Admiralty § 51,

Circuit

has

adopted

indicating

that,

"plaintiffs

such

should be

[federal

court]

original fora."
Inc.,

764

F.2d

where

or

view

at 6-2

in

limitation

is

permitted

to

an

to

elect

revive

their

(2012).

The Fourth

analogous

no

longer

whether

original

to

claims

context,
at

issue,

remain
in

in

their

Wheeler v. Marine Navigation Sulphur Carriers,
1008,

1011

(4th Cir.

12

1985);

see

also

Pickle

v.

Char Lee Seafood, 174 F.3d 444,

449 (4th Cir. 1999)

that, when limitation is denied,

"claimants may elect to proceed

with

their

original

actions

before

any

jury

(observing

authorized

and

demanded in those actions").5
In this case,
court.
from,

the Mullens originally brought suit in state

The vessel owners then filed a petition for exoneration
or limitation of,

liability in

federal

court.

Court granted summary judgment to the vessel owners,
them

from

"vessel
U.S.

any

owner's

at

by

Liability Act,

case.

the

the

be

Ceres

from

case,

there

no

was
the

in

Limitation

liability
that

this

this

ECF No. 83.

"flawed premise []

However,
. . . that

to

for

its

before
of

determine

have

dismissed

a jury trial in this proceeding."

531

Limitation

Court

Court

no

Lewis,

brought

Plaintiffs

and

remained

authority

which

the

exonerating

protect.

under

owners

proposes

to

cites

retained

after

Ceres

Mullens,

this Court

vessel

should

Instead,

at 9,

for

the

Mullens'

exonerated

[the Mullens]
Opp.

the

liability

completely

to

Notably,

that

Court

Ceres'

right"

448.

proposition
this

liability

When

been

from

"simply
Ceres'

the

grant
Br.

in

the Supreme Court has eschewed
the

saving

to

suitors

clause

5 The Court acknowledges that the circumstances considered by the
Fourth Circuit involved limitation petitions that were denied by the
federal court, not exoneration petitions that were granted.
However,
the reasoning remains the same.
As the Supreme Court observed, the
purpose of the Limitation Act is not to "transform the Act from a
protective instrument to an offensive weapon" by which claimants could
be "deprive[d] ... of their common-law rights."
Lake Tankers Corp.
v. Henn,

354 U.S.

147,

152

(1957).
13

reserves to claimants only the right to receive a jury trial."
Lewis,

531 U.S.

not

exclusive,

Id.

at

at 452-53.

454-55.

suitors

'all

entitled.'"
the

example

other

the

remedies

savings

to

remedies

suitors

to

of

the

vessel

owners

are

be

permitted

to

[federal

court]

or

to

their

original

for[urn]."
the

of the[ir]

to

clause

which

"should

because

available

they

Mullens

revive

Wheeler,
have

no

"reserves
are

elect

764

a

at

whether

original

F.2d

presented

longer

at

but

suitors."

Because

issue,

to

in

in

their

Therefore,

"[]sufficient

need for a voluntary dismissal," Miller,

the

remain

claims

1011.

to

otherwise

Id^ at 454 (quoting 28 U.S.C. § 1333(1)).

rights

Mullens

The

of

"Trial by jury is an obvious,

explanation
114 F. App'x

at 539, this factor strongly favors the Mullens.
D. Present Stage of Litigation

Ceres argues that the Court should deny the Mullens' motion

because they have filed their motion "after months of litigation
and

on

the

Dismiss."
The

15, 2014.

eve

of

Ceres'
trial

a

ruling

on

Ceres'

dispositive

Motion

to

Br. in Opp. at 2, ECF No. 83.

for

this

matter

is

scheduled

to

begin

on

April

According to the Court's Order of February 12, 2014,

"the taking of discovery and bene esse depositions" is scheduled
to

be

completed

by

March

14,

2014.

ECF

No.

89.

The

Court

acknowledges the advanced stage of litigation in this case, but
also

observes

that

the

underlying motion
14

for

summary

judgment

was timely filed and briefed.
However,

issue

ECF No. 46 (filed Aug. 28, 2013).

because of an extremely busy docket,

its ruling

until

January

10,

2014

-

the Court did not

nearly

four months

after the motion became ripe for review and approximately three
months before trial.
"the

advanced

In

stage

of

any event,

the

under these circumstances,

litigation

and

the

expense

to

the

defendant do not by themselves mandate denial of the motion."
Moore's Federal Practice § 41.40

Furthermore,
dismissal
avoid

id.,

the
be

an

should
adverse

the

Court

Mullens.
allowed

recognizing
generally

It is
to

no

then be

claims

in

that

be

on

evidence

a

another

bail

forum

"motion
when

the

the

suggesting

in

which

out

after

for

merits

generally,

forum

allowed to

a

denied

true that,

"select

claims,

(Matthew Bender 3d ed.).

determination

finds

a

of

such

the

a

claimants
to

to

the case here.
court

nor

(Phillips,

were

waivered

simply no
Court's

to

However,

to

by

should not
[their]

the

same

adverse

Davis, 819
that

is not

The Mullens neither chose to litigate in federal
in

their

resolve

throughout the course of this matter.
Court

purpose

try the

seeing

J., dissenting).

is

action,"

prosecute

scot-free
. . .

voluntary

purpose

handwriting on the wall in the first chosen forum."
F.2d at 1277

8

soon

rule

indication

at

ruling would be

on

Ceres'

this

15

return

to

to

state

court

In any event, even if the

motion

point

"adverse"

to

as

to

the

to

dismiss,

whether
Mullens.

or

there

not

See,

is

the

e.g.,

Pontenberq v.

(observing

Boston Sci.

that

Corp.,

"the

252

record

F.3d 1253

indicates

(11th Cir.

that

2001)

[Plaintiff's]

voluntary dismissal was not sought solely to avoid an expected
adverse ruling on
been

[Defendant's]

contemplated

judgment

motion

Therefore,
because

by
had

summary judgment motion,

[Plaintiff]
been

even

filed"

before

(emphasis

the

in

but had
summary

original)).

notwithstanding the advanced stage of the litigation,

the

Court's

January

10,

2014

ruling

on

the August

28,

2013 summary judgment motion is not attributable to the Mullens,
this

factor

In

Ceres'

favors

sum,

neither the Mullens

considering

the

nor Ceres.

"present

stage

of

litigation,"

"effort and expense in preparing for trial," the Mullens'

"diligence,"

lack

"[] sufficient
dismissal,"

importance
suitors

Miller,

of

of

114

the

the

DISMISSED WITHOUT

of

the

Mullens'

need

for

a

voluntary

at

GRANTS

as

under

the

including

the

Mullens'

crossclaims

crossclaims

saving
motion

against

against

the

to
for

Ceres.

Ceres

are

reasons

set

motion

for

CONCLUSION

forth

above,

voluntary dismissal pursuant to Fed. R.
GRANTED,

539,

PREJUDICE.

IV.

For

the

rights

their

Mullens'

and

App'x

their

Court

delay,"

the

F.

preserving

dismissal

Accordingly,

"excessive

explanation

clause,

voluntary

of

there is no

the

Civ.

unfair prejudice to
16

Mullens'

P.

Rule 41(a) (2)

Ceres.

is

Therefore,

the

Mullens'

PREJUDICE.

crossclaims

against

Ceres

are

DISMISSED

WITHOUT

Such dismissal brings this action to an end.

The Clerk is REQUESTED to

send a copy of this Opinion and

Order to all counsel of record.
IT

IS

SO

ORDERED.

/sm%&
Mark S.
UNITED

Norfolk, Virginia

February 3.Q , 2014

17

STATES

Davis

DISTRICT

JUDGE