United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
Brian and Kayla Rayburn commenced this action against
defendant CSX Transportation, Inc. on December 6, 2016, by
filing a complaint in the New York State Supreme Court in St.
Lawrence County. Dkt. No. 2 ("Complaint"). CSX
removed the action to this Court on January 17, 2017. Dkt.
No. 1 ("Notice of Removal"). CSX impleaded Niagara
Mohawk Power Corporation, Brian Rayburn's employer, as a
third-party defendant on January 26, 2017. Dkt. No. 8-1
("Third-Party Complaint"). Niagara moved for a
judgement on the pleadings on April 7, 2017. Dkt. No. 27
("Niagara's Motion"). CSX filed a declaration
in partial opposition on May 19, 2017, and also requested
that the Court dismiss its third-party action without
prejudice. Dkt. No. 37 ("CSX's Motion"). For
the following reasons, CSX's Motion is denied, and
Niagara's Motion is granted.
20, 2016, Mr. Rayburn was working in Gouverneur, New York, as
an employee of Niagara. Compl. ¶¶ 7,
Plantiffs allege that as part of his job, he used a ladder to
access a utility pole owned by CSX in order to work on the
electrical power lines attached to it. Id.
¶¶ 12-16. The power lines were owned by Niagara and
provided electricity to CSX's railroad crossing.
Id. ¶¶ 10-15. Plaintiffs further allege
that the utility pole broke while Mr. Rayburn was accessing
it, causing him to fall to the ground and to sustain
"significant personal injuries." Id.
¶¶ 17-19. Mr. Rayburn now sues CSX for negligence,
Id. ¶¶ 23-27, and New York State labor law
violations, id ¶¶ 29-34. Mrs. Rayburn seeks damages
for the loss of "love, compassion and services of her
husband." Id. ¶¶ 37-39. CSX raises a
number of defenses to Plaintiffs' claims, including that
any injuries to Mr. Rayburn were a result of his culpable
conduct and that Mr. Rayburn assumed the risk. Dkt. No. 6
("Answer") ¶¶ 6, 8.
January 16, 2017, CSX brought a third-party action against
Niagara as Mr. Rayburn's employer and owner of the
electrical power lines, seeking indemnification. Third-Party
Compl. ¶ 16. CSX alleges that Niagra's negligence
caused Mr. Rayburn's injuries, id ¶ 22, and that
"agreements and understandings were in place
whereby" Niagara would seek permission from CSX before
accessing the pole in question, id ¶ 8. Niagara argues,
among other defenses, that CSX's claims are barred by New
York State Workers' Compensation Law §11, which
precludes third-party indemnification of employers, absent
limited exceptions. Dkt. No. 21 ("Answer to Third-Party
Complaint") ¶ 37. Niagara moved for judgment on the
pleadings, arguing that employer indemnification is barred by
the Workers' Compensation Law and that CSX has not
alleged either a grave injury or an express indemnification
agreement, which would allow for indemnification.
17, 2017, CSX submitted a letter to the Court offering to
execute a stipulation dismissing the Third-Party Complaint
without prejudice. Dkt. No. 36 ("Letter Brief). Niagara
rejected the offer, instead offering to accept a dismissal
with prejudice. Dkt. No. 37-2 ("Cost E-mail").
Following this exchange, CSX responded to Niagara's
Motion on May 19, 2017. CSX's Mot. CSX again requested
that the Court dismiss the Third-Party Complaint without
prejudice because CSX did not yet know if Mr. Rayburn
sustained grave injuries that would allow CSX to indemnify
Niagara under New York law. Id. ¶¶ 11-12.
Voluntary Dismissal by Court Order
Rule 41(a)(2) of the Federal Rules of Civil Procedure,
"an action maybe dismissed at the plaintiffs request
only by court order, on terms that the court considers proper
.... Unless the order states otherwise, a dismissal under
this paragraph is without prejudice." "[Dismissals
are at the district court's discretion."
D'Alto v. Dahon Cal. Inc., 100 F.3d 281, 283 (2d
Cir. 1996) (citing Zagano v. Fordham Univ., 900 F.2d
12, 14 (2d Cir. 1990)).
considering when dismissal without prejudice would be proper,
"[t]wo lines of authority have developed" in the
Second Circuit. 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.'" Id.
(quoting Cone v. W.Va. Pulp & Paper Co., 330
U.S. 212, 217 (1947)). The second "line indicates that
the test for dismissal without prejudice involves
consideration of various factors, known as the
Zagano factors." Id. (citing
D'Alto, 100 F.3d at 283; Zagano, 900 F.2d at
14). In Zagano, the Second Circuit, noting that
"[v]oluntary dismissal without prejudice is . . . not a
matter of right, " outlined five "[f]actors
relevant to the consideration of a motion to dismiss without
prejudice." Zagano, 900 F.2d at 14. These
factors are: (1) "the plaintiffs diligence in bringing
the motion;" (2) "any 'undue vexatiousness'
on plaintiffs 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." Id. (citing Bosteve Ltd. v.
Marauszwki, 110 F.R.D. 257, 259 (E.D.N.Y. 1986);
Harvey Aluminum, Inc. v. Am. Cyanamid Co., 15 F.R.D.
14, 18 (S.D.N.Y. 1953)). The Zagano "factors
are not necessarily exhaustive and no one of them, singly or
in combination with another, is dispositive." Kwan
v. Schlein, 634 F.3d 224, 230 (2d Cir. 2011).
Motion for Judgment on the Pleadings
standard for a motion for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure"is
the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim." Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006) (citing
Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113
(2d Cir. 2005)). To avoid dismissal, a "complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A court must accept as true the
factual allegations contained in a complaint and draw all
inferences in favor of the plaintiff. Allaire Corp. v.
Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006).
Plausibility, however, requires "enough fact[s] to raise
a reasonable expectation that discovery will reveal evidence
of [the alleged misconduct]." Twombly, 550 U.S.
at 556. The plausibility standard "asks for more than a
sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). "[T]he pleading
standard Rule 8 announces does not require 'detailed
factual allegations, ' but it demands more than an
accusation." Id. (quoting Twombly, 550
U.S. at 555). Where a court is unable to infer more than the
possibility of misconduct based on the pleaded facts, the
pleader has not demonstrated that he is entitled to relief,
and the action is subject to dismissal. Id. at
678-79. Nevertheless, "[f]act-specific question[s]
cannot be resolved on the pleadings." Anderson News,
L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir.
2012) (second alteration in original) (quoting Todd v.
Exxon Corp., 275 F.3d 191, 203 (2d Cir. 2001)).
Presented with "two plausible inferences that maybe
drawn from factual allegations, " a court "may not
properly dismiss a complaint that states a plausible version
of the events merely because the court finds a different
version more plausible." Id.