Taylor v. Tesco Corp.

• Decision Date: 08 September 2011
• Docket Number: Civil Action No. H–11–00517.
• Citation: 816 F.Supp.2d 410
• Parties: Keith TAYLOR and Barbara Taylor, Individually and on Behalf of Their Two Minor Children, David A. Taylor and Daryel Taylor, Plaintiffs, v. TESCO CORPORATION (US), Tesco Corporation, Pride International, Inc., and Mexico Drilling Limited, LLC, Defendants.
• Court: U.S. District Court — Southern District of Texas

816 F.Supp.2d 410

Keith TAYLOR and Barbara Taylor, Individually and on Behalf of Their Two Minor Children, David A. Taylor and Daryel Taylor, Plaintiffs,

v.TESCO CORPORATION (US), Tesco Corporation, Pride International, Inc., and Mexico Drilling Limited, LLC, Defendants.

Civil Action No. H–11–00517.

United States District Court,S.D. Texas,Houston Division.

Sept. 8, 2011.

Laurence E. Best, Peter S. Koeppel, Best Koeppel, New Orleans, LA, for Plaintiffs.

Patricia Ann Krebs, Andrew J. Quackenbos, King, Krebs & Jurgens, PLLC, Peter L. Hilbert, Jr., Kevin Michael McGlone, Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC, New Orleans, LA, Susan Grace Keller–Garcia, Attorney at Law, Destrehan, LA, for Defendants.

MEMORANDUM AND ORDER

EWING WERLEIN, JR., District Judge.

This personal injury and products liability case was transferred here from the Eastern District of Louisiana. Pending at the time of transfer were: Defendants Pride International, Inc. and Mexico Drilling, LLC's Motion to Dismiss Pursuant to Rule 12(b)(6) on Basis of Prescription (Document No. 46), and Motion to Dismiss Tesco Corporation Pursuant to Fed.R.Civ.P. 12 (Document No. 57). After the transfer Plaintiffs filed their Motion to Dismiss Without Prejudice (Document No. 154) and Motion for Leave to File Timely Superseding Fourth Supplemental Amended Complaint (Document No. 185). After considering the motions, responses, replies, the arguments made by the parties at the June 23, 2011 scheduling conference, and the applicable law, the Court concludes as follows:

I. Background

Plaintiff Keith Taylor alleges he was injured aboard a fixed oil platform in the Bay of Campeche off the coast of Mexico on January 1, 2009. About four months later Plaintiffs sued Tesco Corporation (US) (“Tesco US”) in the United States District Court for the Eastern District of Louisiana, alleging negligence and strict liability arising out of Tesco US's manufacture of the top drive on which Taylor was injured.¹ Plaintiffs more than a year later filed two amended complaints, adding Defendants Tesco Corporation (Canada), Pride International, Inc. (“Pride”), and Mexico Drilling Limited, LLC (“Mexico Drilling,” and together with Pride, the “Pride Defendants”). ² Plaintiffs substituted Defendant Tesco Corporation for the incorrectly-named “Tesco Corporation (Canada)” by a third amendment to the complaint, filed September 2, 2010.³

Defendant Tesco U.S. in April 2010 filed a motion to dismiss for forum non conveniens, which was later denied, and in July and August of 2010 Tesco Corporation and the Pride Defendants, respectively, moved to dismiss Plaintiffs' claims against them based on the Louisiana one-year prescriptive law.⁴

In February, 2011, the case was transferred to this Court “for the convenience of the parties and witnesses, and in the interest of justice,” pursuant to 28 U.S.C. § 1404(a).⁵ Plaintiffs now seek to dismiss this action without prejudice in light of their desire instead to prosecute a substantially similar case that they filed in the 113th Judicial District Court of Harris County, Texas.⁶ The Pride Defendants, Tesco Corporation, and Tesco U.S. oppose Plaintiffs' motion to dismiss, asserting that dismissal of this case without prejudice would deny to the Pride Defendants and Tesco Corporation their valid limitations defenses under Louisiana law; and they would be left to defend Plaintiffs' claims in Texas state court in a suit that is not barred under Texas's two-year statute of limitations.

II. Discussion

Federal Rule of Civil Procedure 41 governs voluntary dismissal by a plaintiff. A plaintiff's dismissal of suit without prejudice is an “absolute right” if done “before the opposing party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A); Harvey Specialty & Supply, Inc. v. Anson Flowline, 434 F.3d 320, 324 (5th Cir.2005). After the opposing party serves either an answer or motion for summary judgment, voluntary dismissal may occur only “by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Even then, however, “as a general rule, motions for voluntary dismissal should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir.2002).

A. Tesco Corporation

Although styled a “motion to dismiss,” Plaintiff's March 18, 2011, filing had the effect of a Rule 41(a)(1) notice of dismissal as to any defendants who had not yet served either an answer or a motion for summary judgment. Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir.1990) (“The fact that a notice of dismissal is styled ‘motion to dismiss' rather than ‘notice of dismissal’ is without consequence.' ” (citing Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976); Carter v. United States, 547 F.2d 258, 259 (5th Cir.1977))).

Tesco Corporation did not answer Plaintiff's complaint until June 20, 2011, after Plaintiffs had filed their Rule 41(a)(1) dismissal.⁷ Tesco Corporation had previously filed only a motion to dismiss under Rule 12(b)(2)-(6).⁸ A motion to dismiss, unless converted to one for summary judgment by receipt of matters outside the pleadings,⁹ is not the equivalent of an answer or a motion for summary judgment pursuant to Rule 41(a)(1). See Exxon Corp. v. Md. Cas. Co., 599 F.2d 659, 661–62 (5th Cir.1979) (noting that the right of unilateral dismissal under Rule 41(a)(1) “is not cut off by a motion to dismiss” unless the Rule 12(b)(6) motion to dismiss may properly be converted to a motion for summary judgment due to “the trial court's receipt of matters outside the pleadings”); see also In re LaChance, 209 F.3d 720, 2000 WL 284032, at *2 (5th Cir. Feb. 9, 2000) (unpublished op.) (“[F]or purposes of Rule 41, a Rule 12(b)(6) motion becomes a motion for summary judgment unless all extraneous material presented is excluded by the court.” (citing Exxon Corp., 599 F.2d at 661–62)); Bldg. Concepts and Designs Constr., Inc. v. Travelers Prop. Cas. Co. of Am., No. Civ.A. 06–2777, 2006 WL 2294866, at *2 (E.D.La. Aug. 7, 2006) (Vance, J.) (holding that “the tide of the strong weight of authority” supports a reading of Rule 41 wherein “the task before the Court is merely to determine whether an adverse party filed an answer or a motion for summary judgment before the entry of the notice of dismissal,” and collecting cases).

At the Rule 16 scheduling conference, all parties agreed that there was no need for the Court to consider matters outside the pleadings on Tesco Corporation's and the Pride Defendants' motions to dismiss, and that conversion of that motion into one for summary judgment would be inappropriate.¹⁰ Accordingly, neither motion was converted into one for summary judgment. Plaintiff's March 18, 2011 Rule 41(a)(1) “motion to dismiss” therefore effectively dismissed without prejudice Plaintiffs' claims against Tesco Corporation. See Qureshi v. United States, 600 F.3d 523, 525 (5th Cir.2010) (explaining that Rule 41(a)(1)(A)(i) dismissal is “immediately self-effectuating” without any action by the court); see also Plains Growers, Inc. v. Ickes–Braun Glasshouses, Inc., 474 F.2d 250, 255 (5th Cir.1973) (“[W]e conclude that it was intended by the rule-makers to permit dismissal against such of the defendants as have not served an answer or motion for summary judgment, despite the fact that the case might remain pending against other defendants.”).

Moreover, because Tesco U.S. opposes Plaintiff's voluntary dismissal of suit based solely upon alleged prejudice to Tesco Corporation, it has not shown any “plain legal prejudice” to Tesco U.S. to preclude application of the general rule that voluntary dismissals should be “freely granted.” See Elbaor, 279 F.3d at 317. Plaintiffs' claims against Tesco U.S. will therefore be dismissed without prejudice.¹¹

B. The Pride Defendants1. Rule 41 Dismissal Without Prejudice

The Pride Defendants, on the other hand, did answer Plaintiffs' suit before Plaintiffs requested voluntary dismissal.¹² Moreover, they have demonstrated that dismissal without prejudice will cause them “plain legal prejudice other than the mere prospect of a second suit,” Elbaor, 279 F.3d at 317, because they have shown that the claims Plaintiffs filed against them in Louisiana are barred on their face by Louisiana's ¹³ one-year prescriptive statute.¹⁴ Indeed, Plaintiffs do not contest that “the claims have prescribed on the face of the complaint,” but instead assert that prescription is either interrupted or avoided because of its timely suit of Tesco US, whom they assert is either a joint tortfeasor or “solidary obligor.” However, Plaintiffs' arguments to avoid prescription are immaterial to analysis of their request for dismissal without prejudice. See Hyde v. Hoffmann–La Roche, Inc., 511 F.3d 506, 510 (5th Cir.2007) (“In Elbaor, we agreed with the district court that ‘dismissal would potentially strip [the defendant] of a viable statute of limitations defense’ under Texas law, even though the plaintiffs asserted that the discovery rule applied and even though it was not known whether limitations would be unavailable as a defense in a forum in which the suit might be refiled.” (quoting Elbaor, 279 F.3d at 318)). Accordingly, Plaintiffs' motion to dismiss without prejudice will be denied as to the Pride Defendants.

2. Prescription

“[W]hen the plaintiff's petition has clearly prescribed on its face, as here, the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted.” Rizer v. Am. Sur. & Fid. Ins. Co., 669 So.2d 387, 388 (La.1996). As noted, Plaintiffs assert that the Pride Defendants are either joint tortfeasors or solidary obligors with Tesco US, whom they timely sued. The filing of suit against one tortfeasor interrupts the running of prescription as against all joint tortfeasors. La. Civ.Code art. 2324(C). Likewise, “[t]he...