Opinion
CV 2019 00034
03-02-2021
US BANK, NA v. AMERICAN HOME MORTGAGE et al,
ORDER ON PLAINTIFFS MOTION TO DISMISS
This case comes before the Court on Plaintiffs Motion to Dismiss pursuant to M.R.Civ.P. 41(a)2 without prejudice. Party in Interest Nicholas Bull ("Bull") filed an objection on his own behalf. At oral argument, counsel appeared for Plaintiff and Bull. None of the other parties either filed a written response or appeared at the hearing. Therefore, those parties have not objected.
Because Bull had filed an Answer, the Rule requires that the dismissal be "upon order of the court and upon such terms and conditions as the court deems proper." M.R.Civ.P. 41(a)(2), A Rule 41 dismissal is without prejudice unless otherwise specified in the order. Id.
The Court is not aware of any case law providing significant guidance on when a court should grant a Rule 41motion to dismiss without prejudice. The Plaintiff provides a Superior Court decision that suggests that the burden is on the party seeking to prevent the motion to establish that a denial of the motion is necessary to prevent injustice. Wheeler v. Northern Utilities Corp. CUM CV 02 84, (July 31, 2003). That case relies on case law treating decisions on amending pleadings and provides limited guidance. See e.g. John Goodwin, Inc. v. Fox, 642 A.2d 1339, 1340 (Me. 1990). The Court's primary consideration is the degree of prejudice to the party opposing the motion.
Plaintiff moved to dismiss for business reasons arising out of the decision in Beal Bank NA v. New Century Mortgage Corp., 2019 ME 150, 217 A.3d 731. Plaintiff argues that that Jane Bull had not been served, no discovery had been completed, and that Bull will suffer no prejudice from the dismissal.
Bull argues that he will suffer prejudice by an involuntary dismissal. He is seriously ill and desires a resolution, he had put some work into the issues raised by the case, and the Clerk's Complaint was recorded. He would like to resolve the case, and dismissal would slow that process down.
The Court finds that a dismissal would cause little or no prejudice. Bull's desire to resolve the case now that Plaintiff engaged the issue has some appeal, but nothing will prevent negotiations towards a resolution of the mortgage once the case is dismissed. Bull had not commenced any discovery since he filed his Answer on July 1. Furthermore, dismissal will leave him in a similar position than he would be in if the case never had been filed. The bank would be alleging the Note was in default with no action being taken to foreclose. Bull would still be free to commence an action challenging the Plaintiffs status as the owner of the Note if he wishes to press the issue. Plaintiff would record dismissal of the suit at the Registry, negating the Clerk's certificate.
Because little had been done on the case and one of the parties had yet to be even served, it is proper to grant the Motion to Dismiss without prejudice and no additional terms or conditions.
Plaintiffs Motion to Dismiss is GRANTED. The case is DISMISSED without prejudice.