Bates v. Dow Chemical Company

Full title: DOUGLAS BATES, Plaintiff v. THE DOW CHEMICAL COMPANY, ET AL., Defendants

Court: United States District Court, S.D. Mississippi, Jackson Division

Date published: Nov 29, 2005

Civil Action No. 3:03CV519-WHB-AGN (S.D. Miss. Nov. 29, 2005)

Opinion

Civil Action No. 3:03CV519-WHB-AGN.

November 29, 2005

OPINION AND ORDER

WILLIAM BARBOUR JR., District Judge

This cause is before the Court on the Motion to Dismiss of Defendant Beazer East, Inc. (hereinafter "Beazer East"), f/k/a Koppers Company, Inc.¹ Having considered the Motion to Dismiss, to which Plaintiff Douglas Bates failed to respond, the Court finds that the it is well taken and should be granted.

1 Beazer East was incorrectly named in the Second Amended Complaint as Koppers, Inc.

This case involves products liability claims and other related claims. The subject Motion to Dismiss was filed with the Clerk of the Court on October 25, 2005. Beazer East seeks dsimsissal based on the statute of limitations. Plaintiff Bates failed to respond to the subject Motion, and the time limit for filing a Response has expired. Therefore, Pursuant to the authority granted this Court under Rule 7.2(C)(2) of the Uniform Local Rules of the United States District Courts for the Northern and Southern Districts of Mississippi,² the Court finds that the Motion to Dismiss is well taken and should be granted.

2 Rule 7.2(C)(2) states "[i]f a party fails to respond to any motion, other than a motion for summary judgment, within the time allotted, the court may grant the motion as unopposed."

As stated above, the Beazer East seeks dismissal based on the statute of limitations. When dismissal is based on the statute of limitations, the dismissal is with prejudice in most circumstances. However, in at least two cases decided by the United States Court of Appeals for the Fifth Circuit, the court held that if a case is dismissed based on failure of a party to respond to a dispositive motion, then dismissal must be without prejudice. John v. State of Louisiana (Bd. of Trustees for State Colleges and Universities), 757 F.2d 698, 709 (5th Cir. 1985);Arundar v. DeKalb County Sch. Dist., 620 F.2d 493, 493-95 (5th Cir. 1980). Based on the holdings in John and Arundar, Plaintiff's claims against Beazer East must be dismissed without prejudice.

Based on the holdings presented above:

IT IS THEREFORE ORDERED that the Motion to Dismiss of Defendant Beazer East, Inc. (docket entry no. 123) is hereby granted. Defendant Beazer East, Inc., incorrectly named in the Second Amended Complaint as Koppers, Inc., is hereby dismissed from this case without prejudice.

SO ORDERED.