793 F.Supp. 205 (D.Minn. 1992), 3-90 CIV 436, Metropolitan Federal Bank of Iowa, F.S.B. v. W.R. Grace & Co.

Docket Nº:3-90 CIV 436.
Citation:793 F.Supp. 205
Party Name:METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Metropolitan Federal Bank of Minnesota, F.S.B., and Metropolitan Federal Bank, F.S.B. v. W.R. GRACE & CO., W.R. Grace & Co.-Conn., and United States Gypsum Company.
Case Date:February 28, 1992
Court:United States District Courts, 8th Circuit, District of Minnesota

Page 205

793 F.Supp. 205 (D.Minn. 1992)

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Metropolitan Federal Bank of Minnesota, F.S.B., and Metropolitan Federal Bank, F.S.B.

v.

W.R. GRACE & CO., W.R. Grace & Co.-Conn., and United States Gypsum Company.

No. 3-90 CIV 436.

United States District Court, D. Minnesota, Third Division.

Feb. 28, 1992

Arntson & Stewart by Jon M. Arntson, Fargo, N.D. and Speights & Runyan by Daniel A. Speights, Hampton, S.C., for plaintiffs.

Popham, Haik, Schnobrich & Kaufman by Hugh V. Plunkett and Keith J. Halleland, Minneapolis, Minn., for defendants W.R. Grace & Co. and W.R. Grace & Co.-Conn.

Zelle & Larson by Sandra Wallace, Minneapolis, Minn. and Morgan, Lewis & Bockius by Dennis J. Valenza, Philadelphia, Pa., for defendant U.S. Gypsum Co.

Page 206

ORDER

ALSOP, Chief Judge.

This is an asbestos property damage action involving seven buildings--three in Minnesota, two in Iowa, one in North Dakota and one in South Dakota. This matter came on for hearing before this court upon the joint motion for summary judgment of defendants W.R. Grace & Co.-Conn. ("W.R. Grace") and United States Gypsum Company ("USG"), on the theory that plaintiffs' claims are barred by the statute of limitations. While this motion was under advisement, plaintiffs moved for voluntary dismissal of all of its claims relating to the non-Minnesota buildings. USG does not oppose plaintiffs' motion for voluntary dismissal but W.R. Grace does oppose the motion.

I. MOTION FOR VOLUNTARY DISMISSAL

Federal Rule of Civil Procedure 41(a)(2) provides that, once an answer or a motion for summary judgment has been served, "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." "The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissals which unfairly affect the other side. Courts generally will grant dismissals where the only prejudice the defendant will suffer is that resulting from a subsequent lawsuit." Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). The loss of a valid statute of limitations defense is not necessarily a bar to a dismissal pursuant to Rule 41(a)(2). See, e.g., McCants v. Ford Motor Co., Inc., 781 F.2d 855 (11th Cir. 1986).

In the instant case, the court concludes that defendant W.R. Grace & Co.-Conn. will suffer no legal prejudice due to dismissal without prejudice of plaintiffs' claims related to non-Minnesota buildings, so long as said dismissal is subject to the following conditions:

1. All discovery taken in the instant case shall be available for use in any subsequent action involving the subject non-Minnesota buildings, including use at trial;

2. Plaintiffs shall reimburse defendants for costs and attorney's fees directly related to the litigation of issues on the non-Minnesota buildings which will not be relevant to any subsequent action in another jurisdiction. Defendants shall submit to the court, within fifteen days of the date of this order, a statement of the amount of such costs and attorney's fees.

II. SUMMARY JUDGMENT ON MINNESOTA BUILDINGS

Because it is granting plaintiffs' motion for voluntary dismissal of claims relating to non-Minnesota buildings, the court will address the defendants' summary judgment motion only as it relates to the buildings in Minnesota.

A. Undisputed Facts

Plaintiffs filed the complaint in this action on June 29, 1990 in United States District Court for the District of Minnesota. Service on the defendants was not made until between July 12 and 14, 1990. Plaintiffs' complaint seeks to recover the costs of abatement of asbestos-containing materials allegedly present in its buildings. Although the original complaint does not specify precisely which buildings are at issue...

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