Opinion
CV-13-277
04-16-2014
DOUGLAS J. GOING, Plaintiff v. NEIL SMITH AKA NEAL SMITH and JENS PETER BERGEN, Defendants
ORDER ON REQUEST FOR DISMISSAL OF ACTION
Hon. Roland A. Cole, Justice, Superior Court.
On January 27, 2014, the eve of hearing on Defendant Jens Peter Bergen's Motion to Dismiss, Plaintiff Douglas Going filed a request that the court dismiss this action. Mr. Going contemporaneously filed suit in U.S. District Court, and he failed to appear for the hearing on Mr. Bergen's Motion on January 28, 2014.
Mr. Going's request, while unclear and difficult to comprehend, appears to discuss Mr. Going's belief that it is necessary for this judge to produce a " commission" document. Both Defendants have opposed Mr. Going's request. Mr. Going failed to serve either of the Defendants with a copy of his request, and he failed to conform his motion to the requirements of Rule 7. See M.R. Civ. P. 5(a), 7(b)(1). Mr. Going also failed to cite to any Rules of Civil Procedure in his request.
Mr. Going's request cannot be granted as a voluntary dismissal under Maine Rule of Civil Procedure 41(a)(1) . and the court shall not grant Mr. Going's request under Rule 41(a)(2). Rule 41(a)(2) provides that " an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." M.R. Civ. P. 41(a)(2). Considering that Mr. Going's request is procedurally and substantively inadequate, the timing of Mr. Going's request, and the pending Motion to Dismiss from Mr. Bergen and the Motion for Summary Judgment from Mr. Smith, it would not be proper to dismiss Mr. Going's action without prejudice at this juncture. To grant Mr. Going's request would be unfair to the Defendants in this action, who have spent a considerable amount of time and resources defending themselves against Mr. Going's lawsuit. See Colon-Cabrera v. Esso Standard Oil Co ., 723 F.3d 82, 88 (1st Cir. 2013) (emphasizing the importance of protecting the non-moving party from unfairness, and stating " [a] plaintiff should not be permitted to force a defendant to incur substantial costs in litigating an action, and then simply dismiss his own case and compel the defendant to litigate a wholly new proceeding.") Therefore, the court shall reach the merits on both of the Defendants' motions.
Rule 41(a)(1) states in part:
Accordingly, the court ORDERS that the Plaintiff's request is DENIED.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).
an order may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action . . . .M.R. Civ. P. 41(a)(1). A voluntary dismissal cannot be granted under Rule 41(a)(1) because the Defendants have both answered, Defendant Neal Smith has filed a Motion for Summary Judgment, and because the parties have not stipulated to a dismissal. See Id .