Paturzo v. Home Life Ins. Co., 74-1277
| Decision Date | 26 September 1974 |
| Docket Number | No. 74-1277,74-1277 |
| Parties | S. Victor PATURZO, Appellant, v. HOME LIFE INSURANCE COMPANY, a body corporate, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. Edward Jones and Joseph P. McCurdy, Jr., and Gallagher, Evelius & Jones, Baltimore, Md., on brief for appellant.
J. Frederick Motz and Benjamin R. Civiletti and Venable, Baetjer & Howard, Baltimore, Md., on brief for appellee.
Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
Plaintiff, S. Victor Paturzo, purchased a $200,000 life insurance policy on the life of his father, Salvatore Paturzo, in which the son was named as the primary beneficiary. In March 1972 plaintiff cancelled the policy's dividend option to apply the dividends accumulated on the policy to the additional purchase of one-year term life insurance. An ambiguity as to the effective date of cancellation, i.e., whether the additional term insurance was cancelled for March 3, 1972, to March 3, 1973, or for March 3, 1973, to March 3, 1974, was the principal dispute at trial. The effective date of cancellation was crucial because the father died on April 11, 1972. This issue was decided against plaintiff, and it is not raised on appeal. Another issue was plaintiff's claim that under the policy he was entitled to a post-mortem dividend for the year 1972 even though the insured died during that year.
On the morning of the trial, plaintiff, pursuant to Rule 41(a)(2), F.R.Civ.P., moved for an order of voluntary dismissal without prejudice of that portion of plaintiff's claim which concerned the post-mortem dividend. He asserted that he wished to litigate that aspect of his case in a class action which he had instituted that morning and in which he had prayed a jury trial. The motion was denied, and the issue raised on appeal is whether the lower court properly denied plaintiff's motion voluntarily to dismiss his own claim. We conclude that the district court did not abuse its discretion in denying the motion, and we affirm.
The record shows that both parties had extensively prepared for trial when plaintiff made his motion to dismiss. The declaration in this case had been filed in the Superior Court of Baltimore City on or about December 26, 1972. The case was removed to the district court on January 14, 1973, and the issues were joined on February 15, 1973, when defendant filed its answer. Plaintiff, having failed to make a timely demand for a jury trial, attempted to cure his waiver by filing a prayer for a jury trial on March 28, 1973, but the court denied the prayer on April 13, 1973. Cross-motions for summary judgment were filed, and were argued and denied on March 30, 1973. On June 22, 1973, a scheduling conference was held, and at this conference a trial date of October 9, 1973, was set. On September 14, 1973, a pretrial conference was held, and a pretrial order was entered. On the same date plaintiff requested that the trial be postponed because plaintiff's principal witness would be out of town during the week of October 9, 1973. Accordingly, the trial was rescheduled for December 3, 1973, which was a Monday.
During the course of all of the abovedescribed proceedings, plaintiff's counsel never mentioned or suggested that he intended to dismiss the post-mortem dividend aspect of his suit and to institute a class action thereon. It was not until approximately 4:00 p.m. on the Friday afternoon preceding trial that plaintiff's counsel informed defendant's counsel of this intention. It was disclosed during settlement negotiations, and it was not until the morning of the trial that plaintiff filed his motion to dismiss and instituted the class action.
A court will not reverse the trial court's denial of plaintiff's voluntary motion to dismiss without prejudice except where it appears that the trial court failed to exercise its discretion, or abused its discretion. Armstrong v. Frostie Co., 453 F.2d 914 (4 Cir. 1971) (dicta); see Blue Mountain Construction Co. v. Werner, 270 F.2d 305 (9 Cir. 1959), cert, den., 361 U.S. 931, 80 S.Ct. 371, 4 L.Ed.2d 354 (1960). In Armstrong,supra, we said:
Once the defendant has filed an answer or a motion for summary judgment, which normally is marked by extensive preparation, granting dismissal without prejudice becomes discretionary with the court. Fed.R.Civ.P. 41(a)(2). 453 F.2d at 916.
Furthermore, we found that the denial of a plaintiff's motion voluntarily to dismiss would not have been an...
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...seek a voluntary dismissal to circumvent adverse legal rulings against him. Teck, 28 F.Supp.2d at 992 (citing Paturzo v. Home Life Ins. Co., 503 F.2d 333 (4th Cir.1974)). In this case, the plaintiff failed to make a timely jury demand. The defendant argues that allowing the plaintiff to vol......
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