U.S. District Court for the Southern District of New York, May 5, 2020
On February 25, 2020, plaintiffs Laura McDaniel and Edward McDaniel filed a complaint in the New York Supreme Court, New York County, against the defendants, Whittaker, Clark & Daniels, Inc. (WCD) and Revlon, Inc., for asbestos-related personal injury claims relating to Laura McDaniels’ mesothelioma. The next day, on February 26, 2020, WCD removed the case to federal court under 28 U.S.C. § 1332(a) on the basis of complete diversity between the plaintiffs and defendants. WCD alleged the plaintiffs are citizens of Maryland, WCD is a New Jersey corporation with its principal place of business in Connecticut, and Revlon is a Delaware corporation with its principal place of business in New York. When WCD removed the case, neither Revlon nor WCD had been served in the state court action. Service was effectuated for the state summons and complaint on WCD and Revlon on February 27 and 28, 2020, respectively.
On March 27, 2020, the plaintiffs moved to voluntarily dismiss this case without prejudice. The plaintiffs argued that the motion should be granted to allow them to re-file the case in New York City Asbestos Litigation (NYCAL) where there is a dedicated asbestos docket that allows for accelerated trials for living plaintiffs with mesothelioma or late stage lung cancer. They further argue that WCD “snap removed” the case to federal court before Revlon, a citizen of New York, could be served with the state court complaint, in order to circumvent the forum defendant rule under 28 U.S.C. § 1441(b)(2), which states that “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”
WCD and Revlon did not consent to the plaintiffs’ request for a dismissal. Therefore, the plaintiffs couldn’t move to dismiss pursuant to rule 41(a). Instead, the plaintiffs moved to dismiss pursuant to Rule 41(a)(2) which provides that “without the consent of the defendants, an action may be dismissed by the plaintiff only by court order, on terms that the court considers proper.” Although voluntary dismissal without prejudice pursuant to Rule 41(a)(2) is not a matter of right, “the presumption in this circuit is that a court should grant a dismissal pursuant to Rule 41(a)(2) absent a showing that defendants will suffer substantial prejudice as a result.”
The court noted it should evaluate “prejudice” by looking at the five factors set out by the Court of Appeals in Zagano v. Fordham University: “ the plaintiff’s diligence in bringing the motion;  any ‘undue vexatiousness’ on the plaintiff’s part;  the extent to which the suit has progressed, including the defendant’s effort and expense in preparation for trial;  the duplicative expense of re-litigation; and  the adequacy of plaintiff’s explanation for the need to dismiss.
In the case at bar, the court found all five of the Zagano factors to favor the plaintiffs. First, the court found the plaintiffs have clearly acted diligently in moving to dismiss the case just 30 days “after the events that led to their decision not the pursue the action at this time,” namely WCD’s removal of the state court action to federal court. Second, the plaintiffs have not acted with undue vexatiousness. Rather, the plaintiffs alleged that they simply want a speedy adjudication of their claims that they believe can be achieved on the specialized docket in the state court. Third, the litigation is at its earliest stages, before any discovery has occurred. The court noted that the defendants could not have spent any considerable resources in defending this case in which the defendants have only answered the complaint and opposed the current motion. The court found this factor to weigh strongly in favor of plaintiffs’ dismissal. Fourth, the defendants would not be exposed to duplicative expenses related to re-litigation if the case is dismissed, because the parties have not yet engaged in discovery and the defendants’ expenses so far appear to come only from responding to the current motion and answering the complaint. The court further noted that the defendants could have avoided any expense in responding to the current motion by stipulating to a dismissal without prejudice.
Finally, the plaintiffs’ explanation as to why they seek to dismiss this case without prejudice is not only adequate, but compelling. The plaintiffs allege that Laura McDaniel suffers from mesothelioma because of exposure to asbestos as a result of the defendants’ negligence. The plaintiffs seek to dismiss the case without prejudice in order to re-file the case in the state court where the plaintiffs allege that they will be able to seek speedy relief on a specialized accelerated docket.
Therefore, the court granted the plaintiffs’ motion to voluntarily dismiss this case pursuant to Federal Rule of Civil Procedure 41(a)(2).