United States District Court, E.D. Louisiana
the Court is a “Notice of Voluntary Dismissal without
Prejudice by Third Party Plaintiff Bilfinger Salamis, Inc.,
” seeking to dismiss Bilfinger's claims against
Third-Party Defendants Murphy Exploration & Production
Co., USA (“Murphy”) and Corrpro Companies, Inc.
(“Corrpro”). Rec. Doc. 96. Murphy and Corrpro
both oppose the dismissal. Rec. Docs. 97, 99.
February 5, 2016, Plaintiff Barrett Bonin
(“Plaintiff”) filed suit against Defendant
Bilfinger after he tripped over a rope that Bilfinger
employees allegedly left in a walkway. Rec. Doc. 1. Plaintiff
was employed by Corrpro and working on a platform owned by
Murphy. See Id. at ¶ 5. On July 27, 2016,
Bilfinger filed a third-party complaint against Murphy,
alleging that Murphy agreed to indemnify Bilfinger for any
and all liability or damages arising out of any injury to
Murphy employees or contractors. Rec. Doc. 13 at ¶ 6.
Similarly, on August 9, 2016, Bilfinger filed a third-party
complaint against Corrpro, alleging that Corrpro and Murphy
entered into an agreement whereby Corrpro agreed to indemnify
Murphy and its contractors for any and all liability or
damages arising out of any injury to Murphy employees or
contractors. Rec. Doc. 19 at ¶ 7.
Murphy waived service (Rec. Doc. 21) and Corrpro returned an
executed summons (Rec. Doc. 22), but before either had
answered or otherwise filed responsive pleadings, Bilfinger
moved to sever the third-party indemnity claims against both
Murphy and Corrpro (Rec. Doc. 23). On October 18, 2016, we
granted the motion to sever. Rec. Doc. 26.
days before trial was scheduled to begin (and just before
Bilfinger settled with Plaintiff), Bilfinger filed a
“Notice of Voluntary Dismissal” seeking to
dismiss its pending claims against Murphy and Corrpro. Rec.
Doc. 96. Murphy and Corrpro oppose any such dismissal. Rec.
Docs. 97, 99.
claims that it is entitled, as a matter of law, to dismiss
its claims against Murphy and Corrpro under Federal Rule of
Civil Procedure 41(a)(1) and (c). Rule 41(a)(1)(A) provides
that “the plaintiff may dismiss an action without a
court order by filing: (i) a notice of dismissal before the
opposing party serves either an answer or a motion for
summary judgment . . . .” (Emphasis added). Rule 41(c),
which specifically applies to counterclaims, crossclaims, and
third-party claims, provides that “[a] claimant's
voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:
(1) before a responsive pleading is served; or (2) if there
is no responsive pleading, before evidence is introduced at a
hearing or trial.”
argues that “Rule 41(a) governs dismissals of
entire actions, not of individual claims. Bilfinger,
as third party plaintiff, is not in a position to dispose of
the entire action.” Rec. Doc. 97 at 2 (emphasis in
original). Corrpro clearly misunderstands the rule. Rule
41(c) specifically provides for dismissal of third-party
claims under Rule 41(a)(1)(A)(i); further, Bilfinger is not
seeking to only dismiss some of its claims against Corrpro
and Murphy, but the entirety of the third-party complaints.
Conseco Life Insurance Company v. Judson, Conseco
initiated an interpleader action naming Hall Davis and Nancy
Davis Judson as defendants. 214 F. App'x 446, 447 (5th
Cir. 2007) (unpublished). Davis and Judson were in the
process of dissolving their company in state court.
Id. So, Judson filed third-party claims in the
federal interpleader action against several people or
entities participating in the ongoing dissolution of the
company. Id. The state court then enjoined Judson
from pursuing in federal court any claims related to the
dissolution. Id. In response to this injunction,
Judson filed an “Ex Parte Notice of Dismissal, ”
withdrawing all of her third-party claims, before any of the
third parties had filed responsive pleadings. Id.
The district court treated the notice as a motion and set it
for hearing. Id. Judson moved to strike the notice
from the docket, arguing that “because (1) no adverse
party had responded to her claims, and (2) she had not
previously dismissed any action based on or including the
same claims in any court, Rule 41 . . . gave her the
unrestricted right to dismiss her claims without leave of the
court.” Id. at 447-48. Nonetheless, the
district court denied Judson's request to dismiss the
third-party claims. Id. at 448. On appeal, the Fifth
Circuit found that
Judson's interpretation of FRCP 41 is correct.
“[A]n action may be dismissed by the plaintiff
without order of the court  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.” “The provisions of this rule apply to
the dismissal of any counterclaim, cross-claim, or
third-party claim.” In this case, it is undisputed that
no adverse party had responded to Judson's claims.
The district court erred in treating Judson's Notice of
Dismissal as a motion to dismiss and in denying it “as
moot.” We, therefore, reverse the district court and
remand this action to the district court with instructions to
enter judgment recognizing that the claims specified in
Judson's notice were properly dismissed at the time it
Id. (internal citations omitted).
instant case is indistinguishable. Bilfinger has filed a
“Notice of Voluntary Dismissal” and it is
undisputed that neither Murphy nor Corrpro filed a responsive
pleading or otherwise appeared in this case before filing
their memoranda opposing the dismissal. They claim that
Once the matter was severed, Corrpro understood that it,
Murphy and Bilfinger would take no further action until the
underlying tort dispute was fully adjudicated by this
Honorable Court. This understanding is consistent with the
procedural history of the case, specifically the fact that no
docket call or control order has been issued by this Court to
date. Further, and again consistent with the agreement
reached by Corrpro, Murphy and Bilfinger, Bilfinger never
requested that a response to its Third Party Complaint be
filed by Corrpro. In fact, as part of the agreement, Corrpro
and Murphy understood that no answer to Bilfinger's Third
Party Complaint would be filed so as to avoid impacting
Bilfinger's defense of the plaintiff's claims.
Rec. Doc. 97 at 3. Despite any agreement that the parties may
have entered into, Rule 41 and the Fifth Circuit's
interpretation of Rule 41 are clear. Murphy and Corrpro
failed to respond to Bilfinger's third-party complaint,
so Bilfinger has a right to dismiss them, without court
order, by simply filing a notice of dismissal. See also
Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir.
1963) (“Rule 41(a)(1) is the shortest and surest route
to abort a complaint when it is applicable. So long as
plaintiff has not been served with his adversary's answer
or motion for summary judgment he need do no more than file a
notice of dismissal with the Clerk. That document itself
closes the file. There is nothing the defendant can do to fan
the ashes of that action into life and the court has no role