Amick et al v. Allied Glove Corporation et al

Filing 100

MEMORANDUM OPINION AND ORDER granting Plaintiffs' 88 MOTION for Voluntary Dismissal of Action; directing that Plaintiffs' 86 FIRST AMENDED COMPLAINT is dismissed with prejudice; directing that all costs be taxed to the party incurring the same; denying as moot AEP'S 73 SUPPLEMENTAL MOTION for Summary Judgment; denying as moot OPC's 77 MOTION for Summary Judgment; denying as moot OPC's 79 MOTION to Exclude Expert Testimony and in the Alternative, REQUEST for Daubert Hearing Regarding Admissibility on Plaintiffs' Expert Testimony; denying as moot OPC's 91 MOTION in Limine No. 1 and 92 MOTION in Limine No. 2. Signed by Judge Thomas E. Johnston on 7/29/2014. (cc: attys) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

ELDON AMICK, individually and as
Personal representative of the estate of
BARBARA AMICK, deceased,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-cv-06593

AMERICAN ELECTRIC
POWER CO., INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiffs‘ motion [ECF 88] to voluntarily dismiss with
prejudice all claims in this civil action as to the remaining defendants Ohio Power Company
(―OPC‖) and American Electric Power Company (―AEP‖).
Both OPC [ECF 89] and AEP [ECF 90] have filed responses to Plaintiffs‘ motion and also
join in the other‘s motion. OPC indicates that it does not oppose Plaintiffs‘ motion so long as it is
clear that the dismissal is ―claim preclusive and forever bars any future claim against these
defendants in any forum.‖ [ECF 89 at 2.] Similarly, AEP does not oppose Plaintiffs‘ motion but
―requests that any dismissal be one that precludes any future claim by Plaintiff against it in any
forum.‖ [ECF 90 at 3.] Both OPC and AEP submit that a dismissal with prejudice under Fed. R.
Civ. P. 41(a)(2) is deemed to have such claim-preclusive effect. They further indicate, however,

that to the extent that there is any question as to that claim-preclusive effect they oppose Plaintiffs‘
motion. Plaintiffs did not file a reply to either response.
Fed. R. Civ. P. 41(a)(2) provides that, except in situations provided for by Fed. R. Civ. P.
41(a)(1)(A) which are not relevant here, ―an action may be dismissed at the plaintiff‘s request only
by court order, on terms that the court considers proper.‖

See also Bragg v. Robertson,

54 F. Supp. 2d 653, 660 (S.D. W. Va. 1999) (Haden, C.J.) (observing that Fed. R. Civ. P. 41(a)(2)
―is an appropriate mechanism only when a plaintiff seeks to dismiss an entire action as against a
defendant.‖). ―The purpose of [the rule] is freely to allow voluntary dismissals unless the parties
will be unfairly prejudiced . . . and [i]n considering a motion for voluntary dismissal, the district
court must focus primarily on protecting the interests of the defendant[s].‖ Davis v. USX Corp.,
819 F.2d 1270, 1273 (4th Cir. 1987). Unless the order states otherwise, a dismissal under Rule
41(a)(2) is without prejudice. Fed. R. Civ. P. 41(a)(2).
―A plaintiff‘s motion under Rule 41(a)(2) for dismissal without prejudice should not be
denied absent substantial prejudice to the defendant.‖ Andes v. Versant Corp., 788 F.2d 1033,
1036 (4th Cir. 1986) (emphasis added). It is well established, however, that prejudice to the
defendant does not result from the prospect of a second lawsuit. See Vosburgh v. Indemnity Ins.
Co. of North America, 217 F.R.D. 384, 386 (S.D. W. Va. Sep. 12, 2003); see also Valentine v.
Sugar Rock, Inc., 1:10CV193, 2012 WL 4320850, at *2 (N.D. W. Va. Sept. 18, 2012) (noting
same); Carter v. Mauller, 5:11-CV-00626, 2012 WL 3597370, at *1 (S.D. W. Va. Aug. 20, 2012)
(same). In considering whether or not a defendant will suffer actual legal prejudice from a
dismissal without prejudice under Rule 41(a)(2), the following factors are relevant, but
non-dispositive: ―(1) the opposing party‘s effort and expense in preparing for trial; (2) excessive
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delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a
dismissal; and (4) the present stage of the litigation, i.e., whether a motion for summary judgment
is pending.‖ Vosburgh, 217 F.R.D. at 386; see also Gross v. Spies, 133 F.3d 914, at *5 (4th Cir.
1998) (unpublished) (noting same factors).
When a plaintiff moves to voluntarily dismiss his action with prejudice, however, district
courts generally appear to have concluded that such motions should be granted absent prejudice to
a third party, evidence of collusion, an imminent decision on the merits, or other extraordinary
circumstances. 1 See, e.g., Sullivan School Associates, LP v. Town of Berwick, No. 2:12–cv–
00157–NT, 2012 WL 3238100, at *1 (D. Me. Aug. 7, 2012) (noting that when a plaintiff seeks to
dismiss with prejudice, granting the motion is ―generally appropriate, unless a third-party would
be unduly prejudiced by the dismissal . . . .‖); Bioxy, Inc. v. Birko Corp., 935 F. Supp. 737, 740
(E.D.N.C. 1996) (―[A] motion for voluntary dismissal with prejudice should be granted absent
evidence of collusion, an imminent decision on the merits, or other extraordinary
circumstances.‖); see also ITV Direct, Inc. v. Healthy Solutions, LLC, 445 F.3d 66, 70 (1st Cir.
2006) (noting plaintiff‘s argument that ―the court has to allow a plaintiff to dismiss its claim if it
agrees to do so with prejudice, the theory being that the plaintiff should not be forced to go on if the
adversary is fully protected,‖ but concluding that although the Court ―might share this view if no
other interests were involved, . . . as other cases make clear, a third-party intervenor‘s interests
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The Court observes that some district courts appear to have concluded that where a plaintiff‘s Rule 41(a)(2) motion
specifically requests dismissal with prejudice the court must grant that request. See, e.g., C-Tech Corp. v. Aversion
Technologies, CIV.A. DKC 11-0983, 2012 WL 3962508, at *2−3 (D. Md. Sept. 7, 2012) (granting plaintiff‘s Rule
41(a)(2) motion ―[b]ecause district courts ordinarily ‗must‘ grant a plaintiff‘s request for voluntary dismissal with
prejudice and because Defendants here have not offered any argument that such a dismissal would prejudice their
rights‖); Puello v. Citifinancial Servs., Inc., 76 Fed. R. Serv. 3d 536, at *2−3 (D. Mass. 2010) (collecting cases in
which district courts ―have taken a bright-line approach that grants voluntary motions to dismiss where . . . a plaintiff
moves to dismiss his claims with prejudice‖). The Court need not reach the question of whether dismissal is
mandatory, however, because the Court concludes that dismissal with prejudice is also proper under the
discretion-permitting standards discussed above.

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should also be considered.‖). This is likely so because a dismissal with prejudice ―is a complete
adjudication of the issues presented by the pleadings and is a bar to a further action between the
parties.‖ Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir. 1991)
(citation and quotations omitted).
Here, Plaintiffs offer no argument and cite no authority beyond Rule 41(a)(2) in support of
their motion to voluntarily dismiss this case with prejudice. Nonetheless, the Court finds no
reason for Plaintiffs‘ motion to be denied. There is no assertion of prejudice to a third party or
inappropriate collusion, and Plaintiffs‘ motion was filed before the pending motions for summary
judgment became ripe so a decision on those motions was not imminent. No other extraordinary
circumstances are apparent to the Court, nor have any been asserted by OPC or AEP. See also
Shepard v. Egan, 767 F. Supp. 1158, 1165 (D. Mass. 1990) (―[I]t is difficult, both practically and
logistically, to imagine a court denying a plaintiff‘s motion to dismiss her own action with
prejudice.‖).
Additionally, to the extent that the factors relevant to evaluating a motion to voluntary
dismiss without prejudice are also relevant to evaluating a motion to voluntary dismiss with
prejudice, those factors likewise do not suggest that OPC or AEP will suffer actual legal prejudice.
See Allen on Behalf of Glens Falls Bldg. & Const. Trades Council v. Indeck Corinth Ltd. P’ship,
161 F.R.D. 233, 236 (N.D.N.Y. 1995) (noting that the factors for evaluating whether to grant a
Rule 41(a)(2) motion without prejudice are also relevant to a decision whether to grant the moving
plaintiffs a dismissal with prejudice). This is principally so because the only argument raised by
OPC and AEP against dismissal is the possibility of future litigation. As noted above, however,
prejudice to the defendant sufficient to defeat a plaintiff‘s motion to voluntarily dismiss his or her
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action does not result merely from the prospect of a second lawsuit. See Vosburgh, 217 F.R.D. at
386. If the potential of a future action is an insufficient reason to deny a plaintiff‘s motion to
voluntarily dismiss his or her action without prejudice, it is undoubtedly an insufficient basis on
which to deny a voluntary motion to dismiss with prejudice.
Of course, because Plaintiffs seek to dismiss this action with prejudice, there should not be
any future litigation on the claims asserted in this case against OPC and AEP. As Defendants
acknowledge [ECF 89 at 2−3; ECF 90 at 3], the weight of authority appears to hold that a dismissal
with prejudice under Rule 41(a)(2) is deemed to be on the merits and precludes further litigation on
such claims. See, e.g., Harrison, 924 F.2d at 534 (―A voluntary dismissal with prejudice under
Fed. R. Civ. P. 41(a)(2) is a complete adjudication on the merits of the dismissed claim.‖) (citing
Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir. 1985) (―Dismissal of an action with prejudice is a
complete adjudication of the issues presented by the pleadings and is a bar to a further action
between the parties. An adjudication in favor of the defendants, by court or jury, can rise no
higher than this.‖)); Kenny v. Quigg, 820 F.2d 665, 669 (4th Cir. 1987) (―[A] voluntary dismissal
with prejudice is a valid, final judgment on the merits‖); see also Cnty. of Santa Fe, N.M. v. Pub.
Serv. Co. of New Mexico, 311 F.3d 1031, 1049 (10th Cir. 2002) (observing that a district court‘s
grant of a plaintiff‘s motion to voluntary dismiss with prejudice means that ―the defendant will
have obtained a judgment on the merits that vindicates his rights and precludes any future suit by
the plaintiff‖); Warfield v. AlliedSignal TBS Holdings, Inc., 267 F.3d 538, 542 (6th Cir. 2001) (―A
voluntary dismissal with prejudice operates as a final adjudication on the merits and has a res
judicata effect.‖); Puello v. Citifinancial Servs., Inc., 76 Fed. R. Serv. 3d 536 (D. Mass. 2010)
(noting that a dismissal with prejudice ―provides complete protection to the defendant‖ and that
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―when a dismissal with prejudice is granted it does not harm the defendant . . . The defendant
receives all that he would have received had the case been completed.‖) (citations and internal
quotations omitted); United States v. Estate of Rogers, 1:97-CV-461, 2003 WL 21212749, at *4
(E.D. Tenn. Apr. 3, 2003) aff’d sub nom. United States v. Alpha Med., Inc., 102 F. App‘x 8 (6th
Cir. 2004) (explaining that ―[w]hen a plaintiff voluntarily dismisses a cause of action with
prejudice, future litigation of that same cause of action is barred by the doctrine of res judicata‖
and collecting cases in which federal courts have recognized ―that a plaintiff‘s voluntary dismissal
of a complaint with prejudice pursuant to Fed. R. Civ. P. 41(a) gives the defendant the full relief to
which the defendant is legally entitled and is tantamount to a judgment on the merits‖); F.D.I.C. v.
Becker, 166 F.R.D. 14, 15 (D. Md. 1996) (―The fact that [plaintiff] seeks dismissal with prejudice
is of paramount importance. Whenever a suit is dismissed without prejudice under Rule 41(a)(2),
the defendant remains under the threat of another lawsuit. But when that threat is removed by a
dismissal with prejudice, any injustice to the defendant is significantly lessened.‖); Bioxy, Inc. v.
Birko Corp., 935 F. Supp. 737, 740 (E.D.N.C. 1996) (―[A] voluntary dismissal with prejudice acts
as an adjudication on the merits with full preclusive effect. Winning a judgment on the merits
usually precludes any legal prejudice.‖).
Nonetheless, OPC and AEP also express concern that a court might someday determine
that a hypothetical future complaint filed by Plaintiffs and raising claims identical to those raised
here is not in fact precluded by Plaintiffs‘ voluntary dismissal with prejudice of this civil action.
OPC, however, offers only a cursory and speculative argument raising the specter of such of a
future ruling—it has not addressed what law that future court would evaluate to determine the
claim-preclusive effect of Plaintiffs‘ voluntary dismissal of this civil action nor identified anything
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in that law that would counsel for or against the application of claim preclusion. See Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 509 (2001) (holding that for judgments in diversity
cases, federal law incorporates the rules of preclusion of the state in which the court that rendered
judgment in the prior suit sits); id. at 509; see also Taylor v. Sturgell, 553 U.S. 880, 891 n.4 (2008)
(noting same); Sensormatic Sec. Corp. v. Sensormatic Electronics Corp., 273 F. App‘x 256, 261
(4th Cir. 2008) (same); see generally Davis v. Mound View Health Care, Inc., 640 S.E.2d 91, 95
(W. Va. 2006) (explaining that ―[t]he specification as to whether a dismissal is with or without
prejudice is significant‖ and that ―[w]here a dismissal is without prejudice, our savings statute, W.
Va. Code § 55–2–18, may be utilized to permit the re-filing [of an action]‖). Questions of claim
preclusion raise complicated and involved issues of law, and the Court declines to tackle such
questions on so slender a reed of argument from the Defendants.
Moreover, Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 506−08 (2001),
discussed in OPC‘s response, does not compel a contrary result. In Semtek, a federal district court
in California dismissed plaintiff‘s diversity jurisdiction lawsuit ―on the merits and with prejudice‖
as barred by California‘s two-year statute of limitations. Id. at 499. The plaintiff then sued the
same defendant in a new action in Maryland state court, where such claims were timely filed under
Maryland‘s three-year statute of limitations. Id. at 500. The Maryland state court dismissed the
plaintiff‘s action, however, based on the preclusive effect of the federal law of res judicata. Id.
The Supreme Court disagreed, holding that for judgments in diversity cases federal law
incorporates the rules of preclusion of the state in which the court that rendered judgment in the
prior suit sits. Id. at 508−09; Taylor, 553 U.S. at 891 n.4; see also Q Int’l Courier Inc. v. Smoak,
441 F.3d 214, 218 (4th Cir. 2006) (discussing Semtek, 531 U.S. at 499−500, 508−09).
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In so holding, and as relevant here, the Supreme Court explained that ―it is no longer true
that a judgment ‗on the merits‘ is necessarily a judgment entitled to claim-preclusive effect . . . .‖
Id. at 502. But as discussed above, Semtek concerned the claim-preclusive effect of a dismissal
based on a state statute of limitations. Here, in contrast, Plaintiffs have moved to voluntarily
dismiss their entire action with prejudice against OPC and AEP. Such a posture reaches far more
directly to the substantive merits of this action, and counsels in favor of the dismissal‘s
claim-preclusive effect. Compare Semtek, 531 U.S. at 504 (―With regard to the claim-preclusion
issue involved in the present case, for example, the traditional rule is that expiration of the
applicable statute of limitations merely bars the remedy and does not extinguish the substantive
right, so that dismissal on that ground does not have claim-preclusive effect in other jurisdictions
with longer, unexpired limitations periods.‖).
As such, to the extent that OPC and AEP have objected to Plaintiffs‘ motion to voluntarily
dismiss this civil action, the Court rejects the defendants‘ objection.
For these reasons, Plaintiffs‘ motion [ECF 88] is GRANTED and it is ORDERED that
Plaintiffs‘ First Amended Complaint [ECF 86] (and all claims against defendants OPC and AEP
contained therein) is hereby DISMISSED WITH PREJUDICE. In light of the history of this
litigation as well as the concern for clarity expressed by OPC and AEP, however, the Court
expressly notes that the terms upon which the Court considers voluntary dismissal proper are that
the dismissal with prejudice is to have a claim-preclusive effect as to all claims raised by Plaintiffs
against OPC and AEP in this civil action. See Fed. R. Civ. P. 41(a)(2).
Plaintiffs further move that all costs be taxed to the party incurring the same, and
Defendants have raised no objection to that request. Accordingly, having no occasion to address
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any different assignment of costs, it is further ORDERED that all costs be taxed to the party
incurring the same.
Finally, in light of this disposition, the pending motions in this civil action, including
AEP‘s supplemental motion for summary judgment [ECF 73], OPC‘s motion for summary
judgment [ECF 77], OPC‘s motion to exclude expert testimony and request for a Daubert hearing
[ECF 79], and OPC‘s two motions in limine [ECF 91; ECF 92] are DENIED AS MOOT.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record.
ENTER:

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July 29, 2014