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Bonin v. Bilfinger Salamis, Inc.

United States District Court, E.D. Louisiana

February 6, 2017

BARRETT BONIN
v.
BILFINGER SALAMIS, INC.

         SECTION “B” (3)

          OPINION

         Before 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.

         On 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.

         After 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.

         Mere 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.[1]

         Bilfinger 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.”

         Corrpro 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.

         In 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 was filed.

Id. (internal citations omitted).

         The 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 ...


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