Benevolent and Protective Order of Elks of the United States of America v…

Background

The Benevolent and Protective Order of Elks of the United States of America filed this contract action in the U.S. District Court for the Southern District of New York. Swiss Re Corporate Solutions Elite Insurance Corporation moved to dismiss, arguing that the contract required disputes between the parties to be brought exclusively in New York state court. Swiss Re asked the court to dismiss the complaint with prejudice.

The plaintiff did not initially file an opposition to Swiss Re’s motion. After the deadline was extended, the plaintiff filed a motion asking the court either to remand the case to state court or to dismiss it without prejudice so that it could be filed there. Both parties agreed that the contract required the dispute to proceed in New York state court.

Court’s Analysis

The court agreed that federal court was not the proper venue under the parties’ contract. But it explained that a federal court can remand a case to state court only when the case began in state court and was later removed to federal court. Because this action began in federal court, the court could not remand it to the New York Supreme Court.

The court therefore considered only whether the case should be dismissed with or without prejudice. It concluded that both goals could be met: the case could be dismissed with prejudice to refiling in a New York federal court, while remaining open to refiling in New York state court.

Disposition

Judge Dale E. Ho granted Defendant’s Motion to Dismiss in part and granted Plaintiff’s Motion to Dismiss in part. The case was dismissed with prejudice to refiling in any of New York’s federal courts. It was dismissed without prejudice insofar as the plaintiff may refile in New York state court within fourteen days of the order. The clerk was directed to terminate the two motions and close the case.