United States District Court, D. Maryland
CX REINSURANCE CO. LTD., Plaintiff,
JACOB DACKMAN & SONS, LLC et al., Defendants.
Lipton Hollander, United States District Judge
October 30, 2015, plaintiff CX Reinsurance Company Limited
(“CX Re”), formerly known as CNA Reinsurance
Company Limited, filed suit in this Court against defendant
Jacob Dackman & Sons, LLC (“Dackman &
Sons”). ECF 1. CX Re sought rescission of an insurance
policy it issued to Dackman & Sons and alleged a claim of
fraud. ECF 1 ¶¶ 29-46. The thrust of CX Re's
claims was that Dackman & Sons made a material
misrepresentation of fact on a 1997 application for
commercial general liability insurance, by stating that it
“had never had any lead paint violations in the
buildings . . . .” ECF 8 ¶ 32.
filed its First Amended Complaint on January 28, 2016, adding
Elliott Dackman as a defendant, individually and “as
trustee of assets of Jacob Dackman & Sons, LLC.”
ECF 8 at ¶ 5. Service was supposedly made on Dackman
& Sons on February 3, 2016, via the Maryland Department
of Assessment and Taxation. ECF 15. Dackman & Sons did
not respond to the suit. However, Mr. Dackman moved to
dismiss. ECF 17 (Motion); ECF 18 (Memorandum).
17, 2016, with the consent of Mr. Dackman (ECF 28), plaintiff
filed a Second Amended Complaint, adding another defendant,
Alfred Murray Slattery, the former majority owner and
President of National Insurance Services, Inc. See
ECF 30 ¶ 6. Therefore, by Order of June 17, 2016, I
denied, as moot, the motion to dismiss, as it was directed to
the First Amended Complaint, which was superseded by the
Second Amended Complaint. See ECF 29.
is no indication on the docket that Mr. Slattery was ever
served with process. Nor has he participated in the lawsuit.
See docket. Moreover, the Court granted Mr.
Dackman's request to extend until July 15, 2016, the time
by which he was to respond to the Second Amended Complaint.
See ECF 32, ECF 33.
interim, on July 7, 2016, CX Re docketed “Notice of
Voluntary Dismissal with Prejudice, ” dismissing its
claims against Dackman & Sons, Mr. Dackman, and Slattery,
pursuant to Fed.R.Civ.P. 41(a)(1)A)(i). ECF 34. At that
point, the case had been pending for more than eight months.
I approved the Notice by Order of July 8, 2016. ECF 35. The
Clerk then closed the case. See docket.
August 2, 2016, more than nine months after the underlying
case had been filed, Terrell Mitchell; Jakeem Roy; D-Jon
Carter; Ernestine Parker; Pachelle Jackson; Ja'Nai
Townes; Karon Foster; Troy Miller; and Daquantay Robinson
(collectively, the “Intervenors”) filed a
“Motion to Re-Open Case and Intervene.” ECF 36
(“Motion”). They assert, id. at ¶
1: “Each of the intervenors hereto, prior to the filing
of this rescission action, had filed a lead paint injury
claim against Dackman [& Sons] in the Circuit Court for
Baltimore City, alleging injurious lead exposure in a Dackman
[& Sons] property which CX Re insured under the policies
at issue.” The Intervenors claim that they have a right
to intervene in the case under Fed.R.Civ.P. 24(a)(2), because
they “have an interest in the policies at issue and to
ensure that their interests in the CX Re policies are not
impaired or impeded without the opportunity to adequately
protect such interests . . . .” Id. ¶ 4.
The Intervenors also state that, alternatively, they can
intervene in the case, under Fed.R.Civ.P. 24(b)(1)(B),
because they “have a viable claim with common questions
as to the existence of coverage under the policies at
issue.” Id. ¶ 5.
to the Intervenors, they “do not believe that
Defendants have defended or will vigorously defend the
allegations set forth in this Complaint thereby causing
potential injuries to the Intervenors.” Id.
¶ 6. They seek “to contest and challenge” CX
Re's allegations, “which would invalidate”
insurance coverage in the event Dackman & Sons is found
liable in any of the various state tort cases. Id.
The Intervenors assert, id. ¶ 8: “Unless
Intervenors are permitted to intervene as Defendants, the
disposition of this action may impair and impede the ability
of Intervenors to collect under the policies.” Finally,
Intervenors assert that they were never notified of this
rescission action prior to July 20, 2016. Id. ¶
6. By that date, this action had already been
"settled" and dismissed on the Court's docket .
. . .” Id. ¶ 7. Intervenors also filed
“Intervenors' Answer to Second Amended
Complaint.” ECF 37.
Order of August 3, 2016, I directed counsel for Mr. Dackman
and CX Re to respond to the Motion. ECF 38. Both responded on
August 19, 2016. ECF 39 (“Dackman Opposition”);
ECF 40 (“CX Re Opposition”). The Intervenors did
not reply and the time to do so has expired. See
Local Rule 105.2(a); Fed.R.Civ.P. 6(d).
Dackman argues that, because the plaintiff dismissed the case
pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i), “the Court no
longer has jurisdiction over this dismissed case, the
post-dismissal motion to intervene filed in this case is
moot, and this case may not be reopened.” ECF 39 at 1.
makes the same argument. ECF 40. CX Re asserts, id.
¶ 9: “Once a plaintiff files a notice of dismissal
under Rule 41(a)(1)(A), the court loses jurisdiction and may
no longer address the merits of the action or, more pertinent
here, issue further orders.” Thus, CX Re argues,
id. ¶ 10: “After a plaintiff files a
notice of dismissal under Rule 41(a)(1)(A), the action is
defunct and the court has no discretion to allow parties to
exceptions not relevant here, Fed.R.Civ.P. 4l(a)(1)(A)(i)
provides: “[P]laintiff may dismiss an action
without a court order by filing . . . a notice of
dismissal before the opposing party serves either an answer
or a motion for summary judgment . . . .” (Emphasis
added). According to 9 C. Wright & A. Miller, Federal
Practice and Procedure § 2363 (3d ed.) at 437-41:
Although Rule 5(a) requires that a notice of voluntary
dismissal be served on all other parties, the cases seem to
make it clear that the notice is effective at the moment it
is filed with the clerk. It is merely a
notice and not a motion, although a notice in
the form of a motion is sufficient. No order of
the court is required and the district judge may
not impose conditions. Since the notice
terminates the action, “[t]here is nothing the
defendant can do to fan the ashes of that action into life
and the court has no role to play. This is a matter of right
running to the plaintiff and may not be extinguished or
circumscribed by [an] adversary or court.”
The court need not give the perfunctory order of closing the
file. The plaintiff suffers no impairment beyond the fee for
filing the action.
See also In re Amerijet Int'l., Inc., 785 F.3d
967, 973 (5th Cir. 2015) (“The notice of dismissal is
self-effectuating and terminates the case in and of itself;
no order or other action of the district court is
required.”); Jones, Blechman, Woltz & Kelly, PC
v. Babakaeva, 375 F.App'x 349, 350 (4th Cir. 2010)
(Defendant “did not file an answer or a motion for
summary judgment prior to the filing of the Rule
41(a)(1)(A)(i) notice. Therefore, the voluntary dismissal
became effective upon filing of the notice with the clerk ...