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Blaize-Sampeur v. McDowell

June 29, 2007

SUSAN BLAIZE-SAMPEUR AND FRANTZ SAMPEUR, PLAINTIFFS,
v.
MAURICE MCDOWELL, LOST AND FOUND RECOVERY, INC., HOME MERGERS, L.L.C., POUI LAND SERVICES, L.L.C., SOFYA LEVY, DONNAHUE GEORGE, TOM MOONIS, CARIANNE JOHNSON, SOUTHERN STAR MORTGAGE CORP., FIRST NATIONAL BANK OF ARIZONA, AURORA LOAN SERVICES, INC., AND CHATEAU PROPERTIES, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Currently before this Court is plaintiffs' request for dismissal of their complaint against four of the named defendants without prejudice. The four named defendants at issue oppose plaintiffs' request and seek dismissal of the claims against them with prejudice as a result of the defendants' success in dismissing plaintiffs' claims against them pursuant to Rule 12.

I. BACKGROUND

On September 8, 2005, plaintiffs Susan Blaize-Sampeur and Frantz Sampeur*fn1 (hereinafter "plaintiffs"), represented by counsel, filed a complaint in the instant action against defendants Maurice McDowell, Lost and Found Recovery, Inc., Home Mergers, LLC, Poui Land Services, LLC, Sofya Levy, Donnahue Goerge, Tom Moonis ("Moonis"), Carianne Johnson, Southern Star Mortgage Corp. ("Southern Star"), First National Bank of Arizona ("FNBA"), Aurora Loan Services, Inc. ("Aurora"), and Chateau Properties. Plaintiffs' complaint asserts state law fraud claims and violations of the Racketeering Influenced and Corrupt Organization Act against all defendants. (Compl. ¶¶ 90, 95-98, 99-102, 103-132.) On March 2, 2006, the Court received an ex parte letter from counsel for plaintiffs requesting permission to withdraw as counsel. By Order dated March 2, 2006, the Court granted the request and gave plaintiffs additional time to secure new counsel. Plaintiffs were unable to secure new counsel and instead have proceeded with this action pro se.

Thereafter, defendants Aurora and Southern Star moved for judgment on the pleadings pursuant to Rule 12(c) and defendants Moonis and FNBA moved to dismiss pursuant to Rule 12(b)(6) (hereinafter defendants Aurora, Southern Star, Moonis and FNBA will be referred to as "the four defendants"). By Memorandum and Order dated October 18, 2006, the Court granted defendants' motions without prejudice. The Court granted plaintiffs thirty days to amend their complaint and warned that a failure to amend would result in dismissal of the action with prejudice as against the moving defendants. By affidavit dated November 15, 2006, plaintiffs requested an extension of time to file an amended complaint. Over defendants' objections, the Court granted plaintiffs' request, and required plaintiffs to file an amended complaint by February 9, 2007. In that Order, the Court warned that "no further extensions of time [would] be granted." (See Docket Entry # 65.) By letter dated February 9, 2007, plaintiff requested that the action be dismissed without prejudice.*fn2 In response, moving defendants all filed letters seeking to have this Court deny plaintiff's request for dismissal without prejudice. The Court held a telephone conference on April 2, 2007, and sought briefing from the parties on the issue of whether to dismiss the action with or without prejudice. The Court specifically directed defendants to Federal Rule of Civil Procedure 41 on the issue of dismissal without prejudice. In response to plaintiffs' April 27, 2007 letter in opposition to defendants' motion to dismiss, by Order dated May 18, 2007, the Court sought clarification from plaintiffs as to whether they were seeking to dismiss the action without prejudice in its entirety or as against the defendants only. (See May 18, 2007 Order.) By letter dated June 6, 2007, plaintiffs clarified that they do not seek to withdraw the action in its entirety; rather, they seek dismissal of the action without prejudice only as to the four defendants.

II. DISCUSSION

A. FNBA, Moonis, Southern Star and Aurora

Defendants argue that Federal Rule of Civil Procedure 41 does not apply to the instant action because plaintiffs seek dismissal of fewer than all defendants. Rule of 41 provides:

a) Voluntary Dismissal: Effect Thereof

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

In Harvey Aluminum, Inc., the Second Circuit stated that, based on the language in Rule 41(a)(1) that refers to "an action," Rule 41(a)(1) may not be invoked as to fewer than all defendants; rather, the rule is intended only for the voluntary dismissal of an entire action. Harvey Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953). However, subsequently, in Wakefield, the Second Circuit addressed a dismissal under Rule 41(a)(2) and disavowed the Harvey Aluminum decision that required dismissal of an entire action, noting that it "has been criticized and is now against the weight of authority." Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 114 n.4 (2d Cir. 1985). Though Wakefield did not expressly overrule Harvey Aluminum, district courts within the Second Circuit have since adopted the approach of the majority of courts in other circuits - that is, that Rule 41(a) does not require dismissal of the action in its entirety. See Morron v. City of Middletown, No. 05-CV-1705 (JCH), 2006 U.S. Dist. LEXIS 32457, at *4 (D. Conn. May 23, 2006) ("[W]here a party has not yet served an answer or a motion for summary judgment, a plaintiff has the unilateral right to dismiss an action against a particular defendant."); Guigliano v. Danbury Hosp., 396 F. Supp. 2d 220, 224 (D. Conn. 2005) (allowing plaintiff to dismiss a single defendant pursuant Rule 41(a)(1)); Team Obsolete Ltd. v. A.H.R.M.A. Ltd., 216 F.R.D. 29, 36 (E.D.N.Y. 2003) (dismissing claims against certain defendants without prejudice pursuant to Rule 41(a)); Reetz v. Jackson, 176 F.R.D. 412, 413 n.2 (D.D.C. 1997) (stating that court need not dismiss an entire action pursuant to Rule 41(a)(2)); Mutual Benefit Life Ins. Co. in Rehabilitation v. Carol Mgt. Corp., No. 93-CV-7991 (LAP), 1994 WL 570154, at *1 (S.D.N.Y. Oct. 13, 1994) (stating that the aspect of Harvey Aluminum that holds that Rule 41 allows for dismissal of entire actions, rather than specific claims, "has been criticized and rejected by courts and commentators alike, including the Court of Appeals itself") (citing Wakefield, 769 F.2d at 114 n.4 ); Mondejar v. Dow Chem. Company, No. 97-CV-62 (JG), 1998 WL 812577, at *4 n.5 (E.D.N.Y. April 29, 1998) (noting that Harvey Aluminum is no longer persuasive authority in restricting Rule 41 to "actions"); General Foods Corp. v. Jay Zimmerman Co., No. 86-CV-2697 (KMW), 1990 WL 115714, at *2 (S.D.N.Y. Aug. 7, 1990) ("The weight of authority holds that, pursuant to Fed. R. Civ. P. 41(a)(1), a plaintiff may dismiss its claims against less than all defendants in a multi-defendant case."); see also Plains Growers, Inc. by Florists'Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254 (5th Cir. 1973) ("There is little merit in an argument that the court could not dismiss the action as to less than all defendants upon motion, and yet there is nothing in the Rule to indicate an intent to make the word `action' mean `all' in 41(a)(1) and mean less than `all' in 41(a)(2).").

Consistent with the majority position, this Court holds that Rule 41 allows a plaintiff to withdraw an action as to fewer than all defendants. Accordingly, the Court turns to the factors that must be considered by a court in deciding whether to exercise its discretionary authority to grant a motion to dismiss pursuant to Rule 41(a)(2).*fn3 D'Alto v. Dahon Cal., Inc., 100 F.3d 281, 283 (2d Cir. 1996) ("Rule 41(a)(2) dismissals are at the district court's discretion and only will be reviewed for an abuse of that discretion."). These factors include: "[1] the plaintiff's diligence in bringing the motion; [2] any `undue vexatiousness' on plaintiff's part; [3] the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; [4] the duplicative expense of relitigation; and [5] the adequacy of plaintiff's explanation for the need to dismiss." Catanzano v. Wing, 277 F.3d 99, 109-10 (2d Cir. 2001) (quoting Zagano v. Fordham Univ, 900 F.2d 12, 14 (2d Cir. 1990)); accord Ibeto Petrochemical Indus. v. M/T Beffen, 475 F.3d 56, 61 (2d Cir. 2007); see also D'Alto, 100 F.3d at 283 ("A voluntary dismissal without prejudice under Rule 41(a)(2) will be allowed `if the defendant will not be prejudiced thereby.'") (quoting Wakefield, 769 F.2d at 114).

With respect to the first two factors, the Court notes that plaintiffs were represented by counsel when this action was filed in September 2005. As stated above, counsel was relieved by Order of this Court on March 2, 2006. Because plaintiffs were unable to secure counsel, plaintiffs proceeded pro se in opposing defendants' motions to dismiss. Pro se plaintiffs learned of the deficiencies in their complaint when this Court dismissed the Complaint by Memorandum and Order dated October 18, 2006. By letter dated February 8, 2007, rather than file an amended complaint, plaintiffs requested dismissal of the action without prejudice as to the four defendants. The Court finds that plaintiffs were sufficiently diligent in requesting dismissal and have timely responded to this Court's orders.*fn4 Plaintiffs chose not to attempt to file a potentially defective second amended complaint, thereby further dragging out the litigation; rather, plaintiffs evaluated their options and determined that they do not want to proceed at this time. Thus, it appears that plaintiffs are operating in good faith by acknowledging that they do ...


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