Opinion
CIVIL ACTION NO. 12-1748 SECTION "R" (5)
01-19-2018
84 LUMBER COMPANY v. F.H. PASCHEN, S.N. NIELSEN & ASSOCIATES, LLC, ET AL.
ORDER AND REASONS
Defendant and third-party plaintiff F. H. Paschen, S. N. Nielsen & Associates, LLC moves for voluntary dismissal without prejudice of its claim against J&A Construction Management Resources Co. Inc. For the following reasons, the Court grants the motion.
R. Doc. 314.
I. BACKGROUND
This case arises out of two school construction projects in Louisiana. Defendant F.H. Paschen, S.N. Nielsen & Associates, LLC (Paschen) entered into contracts to build an elementary school at the Mildred Osborne School in New Orleans (Osborne Project) and a high school in South Plaquemines Parish (South Plaquemines Project). On both projects, Paschen was the general contractor. Paschen subcontracted a portion of both projects to J&A Construction Management Resources Company, Inc. (J&A). J&A in turn subcontracted a portion of its work on both projects to 84 Lumber Company.
R. Doc. 28 at 2-3 ¶ 5.
Id. at 3 ¶ 5.
Id. at 2 ¶ 5.
Id. at 3 ¶ 7.
Id. at 3 ¶ 9.
On July 5, 2012, 84 Lumber sued Paschen and other defendants, alleging that 84 Lumber was not paid in full for work performed on the Osborne and South Plaquemines Projects. Paschen answered 84 Lumber's complaint and added J&A as a third-party defendant, asserting a breach of contract claim against it. J&A answered Paschen's third-party complaint and filed a breach of contract counterclaim against Paschen.
R. Doc. 1.
R. Doc. 25.
R. Doc. 39.
The Court has since dismissed J&A's counterclaim against Paschen, as well as all other claims in this case apart from Paschen's claim against J&A. Trial on Paschen's claim is set for January 29. Paschen now moves for voluntary dismissal, without prejudice, of its claim against J&A. J&A does not oppose Paschen's motion, but requests dismissal with prejudice.
R. Doc. 294.
R. Doc. 316.
II. DISCUSSION
Federal Rule of Civil Procedure 41(a)(2) permits a plaintiff to dismiss her claims "only by court order, on terms that the court considers proper." "[M]otions for voluntary dismissal should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit." Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002). But "[w]here the plaintiff does not seek dismissal until a late stage and the defendants have exerted significant time and effort, the district court may, in its discretion, refuse to grant a voluntary dismissal." Hartford Accident & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990).
Paschen cannot dismiss its claim by right under Rule 41(a)(1) because J&A has filed an answer and has not stipulated to dismissal.
The Court finds that J&A will not suffer legal prejudice by Paschen's voluntary dismissal without prejudice. First, J&A does not even argue that it will suffer prejudice if the Court grants Paschen's motion. Indeed, J&A states that it supports the motion, and merely requests that dismissal be with prejudice. Second, while trial is scheduled on January 29, J&A has not filed any substantive motions on Paschen's claim against it. Moreover, J&A does not assert that it has expended considerable resources defending against Paschen's claim. Cf. Hartford Accident, 903 F.2d at 360 (affirming denial when plaintiff moved for dismissal after "defendants expended significant time and effort litigating" action). Nor does it appear that J&A will lose any legal defenses if Paschen renews its breach of contract claim against it. Cf. Elbaor, 279 F.3d at 318-19 (noting that loss of a statute of limitations defense constitutes legal prejudice).
R. Doc. 316. --------
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Paschen's motion for voluntary dismissal. Paschen's claim against J&A is DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, this 19th day of January, 2018.
/s/_________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE