McDaniel v. Revlon Inc.

Background

Laura McDaniel and Edward McDaniel filed asbestos-related personal-injury claims in New York State Supreme Court against Whittaker, Clark & Daniels, Inc. (WCD) and Revlon, Inc. WCD removed the case to the Southern District of New York under the federal diversity-jurisdiction statute, asserting that the plaintiffs were Maryland citizens, WCD was a New Jersey corporation with its principal place of business in Connecticut, and Revlon was a Delaware corporation with its principal place of business in New York.

The plaintiffs moved to voluntarily dismiss the federal case without prejudice so they could refile in New York state court, where they said the New York City Asbestos Litigation docket could provide accelerated trials for living plaintiffs with mesothelioma or late-stage lung cancer allegedly caused by asbestos exposure. The plaintiffs argued that WCD had removed the case before Revlon, a New York citizen, could be served, a practice they called “snap removal.”

Rule 41(a)(2) Standard

Because both defendants had answered the complaint and did not consent to dismissal, the plaintiffs could not dismiss the case automatically under Federal Rule of Civil Procedure 41(a). They instead proceeded under Rule 41(a)(2), which allows dismissal by court order on terms the court considers proper. The court explained that, in this circuit, dismissal without prejudice is generally favored unless the defendants show substantial prejudice.

The court applied five factors from Zagano v. Fordham University: the plaintiffs’ diligence, any improper or harassing motive, how far the case had progressed, the possibility of duplicated litigation expenses, and the adequacy of the plaintiffs’ explanation for seeking dismissal.

Court’s Analysis

The court found that all five factors favored the plaintiffs. They moved to dismiss about 30 days after WCD removed the case. The court found no allegation that they brought or pursued the case to harass the defendants or for another improper purpose. The case was still at its earliest stage: there had been no discovery, and the defendants had only answered the complaint and opposed the motion.

The court also found that the defendants had not shown significant duplicated expenses. Their expenses appeared to be limited to answering the complaint and responding to the dismissal motion, and the court stated that much of that work could be used in any later state-court litigation. Finally, the court found the plaintiffs’ explanation compelling because they sought a faster resolution in a specialized state-court docket in light of Laura McDaniel’s alleged severe mesothelioma.

The court distinguished a case involving an attempt to avoid federal multidistrict litigation. It found this case more similar to a decision approving dismissal after pre-service removal by non-forum defendants. The court stated that WCD had the right to remove before Revlon was served, but also noted that WCD appeared to have engaged in the kind of gamesmanship discussed in that other decision.

Disposition

The court granted the plaintiffs’ motion to voluntarily dismiss the case under Rule 41(a)(2). It directed the Clerk to enter judgment dismissing the case without prejudice, close all pending motions, and close the case. The court expressly stated that the motion did not present the question whether removal was proper or whether remand would be proper; the question was whether dismissal without prejudice should be ordered. The opinion did not decide the underlying asbestos-related claims.