Trial Court Did Not Abuse Discretion in Granting Plaintiff’s Motion to Dismiss Without Prejudice Prior to Ruling on Defendant’s Summary Judgment Court of Appeal of Louisiana, Fourth Circuit, February 6, 2019

LOUISIANA — The plaintiff James Sizemore filed suit in Louisiana State Court against multiple defendants, alleging that his diagnosis of mesothelioma was caused by exposure to asbestos while working as a welder, pipefitter, and boilermaker at numerous industrial facilities. The plaintiff’s alleged exposure to certain defendants products occurred exclusively in South Carolina, and those defendants moved for dismissal for lack of personal jurisdiction or forum non conveniens. In response, The plaintiff dismissed those defendants and filed a companion suit in South Carolina.  Viking Pumps did not move to dismiss based on either of those grounds, and subsequently filed a motion for summary judgment based on lack of product identification in July of 2017, and renewed the motion in September 2017 and April 2018.

On April 17, 2018, the plaintiff’s counsel emailed Viking’s counsel a proposed joint motion to dismiss without prejudice. Viking’s counsel contented that, without getting notice prior to the proposed joint motion, the plaintiff added Viking to the South Carolina suit a week prior. In response, Viking requested its motion be granted and that the plaintiff’s claims be dismissed with prejudice.  The plaintiff’s reply included a rule to show cause, and the hearing date was set for July 6, 2018, the same date as the hearing for the motion for summary judgment.

The trial court granted the motion to dismiss without prejudice, and denied Viking’s motion for summary judgment as moot. Viking appealed, and contended that the plaintiff’s motion to dismiss should not have been granted for two reasons: 1. the motion was untimely filed, given the court’s scheduling order; and 2. the purpose of the motion was to transfer the plaintiff’s claims against Viking to the South Carolina case and to avoid a hearing on Viking’s pending summary judgment motion.

The appeals court held that the trial court had the discretion to grant the motion absent evidence that Viking would have been deprived a just defense or would have lost substantive rights, and Viking presented no such evidence. The court further held that the discovery Viking has already done can be used in the South Carolina case, and therefore “cannot conclude that the trial court abused its wide discretion in granting the motion to dismiss without prejudice.”

Only the Westlaw citation is currently available at 2019 WL 469520.

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