United States District Court, W.D. Louisiana, Lake Charles Division
GARRETT L. FAULK, ET AL.
ALCOA, INC., ET AL.
the court is a Motion to Dismiss the Defendant, Associated
Electric & Gas Insurance Services, Limited
("AEGIS") and Motion to Remand (Rec. Doc. 41) filed
by the plaintiffs. For the following reasons, the court will
grant the Motion to Dismiss AEGIS and Motion to Remand (Rec.
Doc. 41) filed by the plaintiffs.
FACTS & PROCEDURAL HISTORY
plaintiff, Garrett L. Faulk, was injured in an explosion
while working as an electrician for Alcoa, Inc. and/or
Reynolds Metals Company. (Rec. Doc. 1-2, p. 8, ¶ 3).
Faulk and his wife originally filed suit in the Fourteenth
Judicial District, Calcasieu Parish, Louisiana, on behalf of
themselves and their minor children. (Rec. Doc. 1-2, pp.
23-35). The plaintiffs filed suit against several defendants,
including Entergy Louisiana, LLC ("Entergy"). (Rec.
Doc. 1-2, p. 23). On August 5, 2016, the plaintiffs amended
their petition and added Entergy's insurer, AEGIS, as a
defendant. (Rec. Doc. 1-2, pp. 5-22). AEGIS, a Bermuda
company, removed the suit based on the Convention on
Recognition and Enforcement of Foreign Arbitral Awards
because the agreement between AEGIS and Entergy required that
disputes be resolved in arbitration. (Rec. Doc. 1). Because
jurisdiction existed over the entire case based on the
convention, the Magistrate Judge recommended denying the
motion to remand. (Rec. Doc. 39). After the Report and
Recommendation was filed, the plaintiffs moved to dismiss
AEGIS without prejudice. (Rec. Doc. 41). AEGIS filed no
response, and Entergy filed a response in which they stated
no position. (Rec. Doc. 43).
Rule 41 of the Federal Rules of Civil Procedure, a plaintiff
may voluntarily dismiss claims against a defendant. If the
defendant has answered or filed a motion for summary
judgment, the plaintiff may only do so by court order,
"on terms that the court considers proper."
Fed.R.Civ.P. 41(a)(2). "[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)
(citing Manshack v. Southwestern Elec. Power Co.,
915 F.2d 172, 174 (5th Cir. 1990)). If the nonmovant will
suffer no plain legal prejudice as a result of the dismissal,
the court "should generally ... grant the motion"
and dismiss the claims without prejudice. Id.
should not deny a Rule 41(a)(2) dismissal simply because the
plaintiff might obtain some tactical advantage. See
9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2364 (3d ed. 2017) (citing
Manshack, 915 F.2d at 174) (other citations
omitted). "Indeed, the 'fact that a plaintiff may
gain a tactical advantage by dismissing its suit without
prejudice and refiling in another forum is not sufficient
legal prejudice to justify denying amotion for voluntary
dismissal.'" Bechuckv. Home Depot U.S.A.,
Inc., 814 F.3d 287, 299 (5th Cir. 2016) (quoting
Gross v. Spies, 133 F.3d 914 (4th Cir. 1998)).
See also Newman v. Bruser, No. CV 16-2074, 2016 WL
3913636, at *1 (E.D. La. July 20, 2016) (granting plaintiffs
Motion to Dismiss to Aegis and Motion to Remand); Crowden
v. Entergy Corp., No. CIV.A. 15-3665, 2015 WL 6869399,
at *2 (E.D. La. Nov. 9, 2015) (granting plaintiffs Motion to
Dismiss to Aegis and Motion to Remand).
has not alleged that it will suffer any legal prejudice by
being dismissed. The court finds that AEGIS will not suffer
legal prejudice because it has not exerted significant time
and effort defending the suit. The plaintiffs also have a
legitimate interest in dismissing AEGIS "to avoid the
imposition of an arbitration clause in an agreement to which
the Plaintiffs were not a party." Crowden, 2015
WL 6869399, at *2. The fact that dismissing AEGIS as a
defendant strips the court of subject matter jurisdiction
over the suit is not grounds for denying the motion to
dismiss. See Bechuck, 814 F.3d at 299;
Newman, 2016 WL 3913636, at *1; Crowden,
2015 WL 6869399, at *2. Accordingly, the court will dismiss
the claims against AEGIS.
concurrence with the conclusions of the Magistrate Judge, the
court's jurisdiction over this matter was based solely on
the plaintiffs' claims against AEGIS because those claims
were covered under the Convention on Recognition and
Enforcement of Foreign Arbitral Awards. With the claims
against AEGIS dismissed, the court does not have an
independent source of subject matter jurisdiction over the
case and declines to exercise supplemental jurisdiction under
28 U.S.C. § 1367(c)(3). Therefore, the matter will be
plaintiffs' Motion to Dismiss to AEGIS and Motion to
Remand (Rec. Doc. 41) will be GRANTED. The claims against
AEGIS will be DISMISSED WITHOUT PREJUDICE, and the case will
be REMANDED to the Fourteenth Judicial District, Calcasieu
 By granting this motion, the Report
and Recommendation (Rec. Doc. 39) filed by the Magistrate
Judge, which recommends denying the Motion to Remand (Rec.
Doc. 16) and Motion for Oral Arguments (Rec. Doc. 21) will be
moot. Also, the court makes no determination about the