ISC Holding AG v. Nobel Biocare Investments N.V., No. 1:2008cv11051 - Document 54 (S.D.N.Y. 2010)

Court Description: OPINION AND ORDER. #99686 Respondent's motion is granted and petitioner's Notice of Voluntary Dismissal (Dkt. No. 40) is vacated. The parties shall appear for a conference on Friday, December 3, 2010 at 4 p.m. to discuss the scheduling of the evidentiary hearing. (Conference set for 12/3/2010 at 04:00 PM before Judge Louis L. Stanton.) (Signed by Judge Louis L. Stanton on 11/23/10) (rjm) Modified on 11/30/2010 (ajc).
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DORIGINAL USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC ISC Holding AG v. Nobel Biocare Investments N.V. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - -X Doc. 54 DATE FILED: 11/30/10 ISC Holding AG, Petitioner, 08 Civ. 11051 (LLS) - against - OPINION AND ORDER Nobel Biocare Investments N.V., Respondent. - -X Treating respondent's Motion to Set a New Trial Date as an application under Federal Rule of Civil Procedure vacate petitioner's Notice of Voluntary Dismissal, is whether petitioner can terminate this 60 (b) (6) to the question proceeding by the simple filing of a notice under Federal Rule of Civil Procedure 41 (a) (1) (A) action which provides without a court \\. . order by the plaintiff may dismiss an filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment;". If not, petitioner is limited to Rule 41 (a) (2) which states "Except as provided in Rule 41 (a) (1) , an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Although the defendants had not filed an answer or summary judgment Co., motion in Harvey Aluminum, 203 F. 2 d 105 ( 2d r. 1953), Inc. v. American the Court of Appeals vacated the plaintiffs' notice of voluntary dismissal. There had been a Dockets.Justia.com hearing which record upon a lasted several days and generated preliminary injunction motion. rd. a at 420-page 107. The Court of Appeals stated that "The purpose of [Rule 41 (a) (1)] is to to limit an issue is facilitate early stage voluntary of the dismissals, proceedings but before Because an extensive hearing had been held the controversy were squarely them to joined." rd. which "the merits raised," the district court's denial of the preliminary injunction was based in part on its assessment that "a literal the merits, appl ication of the Court of Appeals concluded Rule 41 (a) (1) to the present controversy would not be in accord with its essential purpose of preventing arbitrary dismissals after an advanced stage of a suit has been reached." rd. at 107-08. Aluminum Scarne, 599 "has F.2d 1169, not 1175 been (2d Cir. Appeals has limited it to its facts. therefore, that at least with the explicit are not subject to vacatur."). been overruled, received," 1979), See id. and the at 1176 Thorp v. Court of ("We hold, in cases falling short of the extreme exemplified by Harvey Aluminum, conformance well notices of requirements However, dismissal of Rule filed in 41 (a) (1) (i) Aluminum has not and the Thorp court stated that "there may be a point in legal proceedings where the purpose of Rule 41(a) (1) (i) would be better served by abandoning a Id. literal interpretation." The Thorp court distinguished Harvey Aluminum on its facts: - 2 - in Thorp the plaintiff filed a notice of dismissal only 13 days after filing his and complaint, uThe conducted a short untranscribed hearing hours, of dist addressed side." the out either in When Id. seven alleged argument the or merits in the had Only three causes the memoranda of court ss than two lasting I during which no testimony was given. action ct of complaint law by controversy were either have been squarely raised, and the case is at an advanced stage, voluntary smissal may still be unavailable. No. 08-CV-2081 (KAM) (JO) I See Poporic v. 2010 WL 1260598, at *6 Jugo Shop, (E.D.N.Y. Mar. 31, 2010). This case has petitioner's notice the extreme dismissal: facts justifying vacating petitioner filed its notice 22 months into a proceeding that has no provision for service of an answer or summary judgment motion, merits Appeals, and briefing, argument on the eve of a and after a decision on the remand by the Court of hearing in which the merits of the controversy were to be squarely raised for a third time. 1. Petitioner initiated this proceeding to compel arbitration on December 19, 2008. Under the Federal Arbitration Act, proceedings are initiated not by filing a complaint, 3 - such but by a petition for an order directing arbitration, which "shall be made and heard in the manner provided by law for the making and hearing of motions./f 9 U.S.C. 4, ยงยง 6. Thus, the respondent must oppose the petition as it would a motion, not by serving an answer. See USA properly award as Productos iles treated motion Ltd., petition and to "was No. 92 31, response petition to basis 1992) to rules provided that modify not required Civ. 5025 P. (PKL) , 1992 arbitration comply 12 (b) to compel ition WL with 230175, party opposing a default the In re Seanav /f) i arbitration by v. (district court confirm to S .A. at (failure to file memorandum grant a and . R. Civ. (S.D.N.Y. Aug. sufficient ales Inc., 23 F.3d 41, 46 (2d Cir. 1994) pleading requirements of Int'l Indust E *2 law in constituted because motion must local serve and file a memorandum of law) Respondent properly opposed the petition, on its merits, to arbitrate./f and I finding that "there is no enforceable agreement (Dkt. No. 29 at 2). Petitioner appealed, and the Court of Appeals the arbitration clause was ambiguous and remanded proceedings. found that for further (Dkt. No. 32 at 2). Following generated denied it remand, the parties undertook "over 2300 pages of documents" and discovery, which "more than 1,300 pages of deposition testimony of five witnesses on both sides of 4 - ----_._------.-_.- the Atlantic Ocean," 10/28/10 (Resp. Mem. and 6 -7) , an hearing was scheduled for October 25, 2010. evident On October 22 - one business day before the hearing was to begin - petitioner filed its notice of voluntary dismissal. 2. In this case "the purpose of Rule better served by abandoning a 599 otherwise F.2d deprived at 1176. To do for nearly two years, and would interpretation. would leave 1/ be Thorp, respondent its long-awaited hearing and threatened with having to oppose the petition anew, remand literal 41(a) (1) (i) discovery, despite having litigated the case through a decision on the merits, appeal, to the eve of a final hearing, simply because the procedures governing this case do not provide service of an answer. Conclusion Respondent's motion is granted and petitioner's Not Voluntary Dismissal (Dkt. No. 40) is vacated. of parties shall appear for a conference on Friday, December 3, 2010 at 4 p.m. to discuss the scheduling of the evidentiary hearing. So ordered. - 5 - Dated: New York, New York November 23, 2010 IAn,.;"J l.. Louis L. Stanton U.S.D.J. 6 -