United States District Court, D. Maine
MICHAEL GREENE, and DEBBIE BERNIER, on behalf of E.G. their minor child Plaintiffs,
NEW ENGLAND SUZUKI INSTITUTE, Defendant.
ORDER ON MOTION TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
the Court denied their request for a preliminary injunction,
a student's parents move to voluntarily dismiss their
lawsuit against the operator of a summer educational program
and request that the Court enter a dismissal without
prejudice. The educational program objects and asks the Court
to dismiss the lawsuit with prejudice. Applying First Circuit
precedent, the Court dismisses the lawsuit without prejudice.
April 2, 2018, Michael Greene and Debbie Bernier, parents and
guardians of E.G., filed a complaint. Compl. (ECF
No. 1). New England Suzuki Institute (NESI) answered on May
10, 2018. Answer (ECF No. 5). On May 15, 2018, the
Plaintiffs filed a motion for a preliminary injunction.
Pls.' Mot. for Prelim. Inj. with Incorporated Mem. of
Law (ECF No. 8) (Pls.' Mot.). On June 4,
2018, NESI filed its response in opposition to the motion
along with the declarations of three of its staff: Assistant
Director Wendy Sawicki, Co-Director Yasmin Vitalius, and
President Elizabeth Sellers. Def.'s Obj. to Pls.'
Mot. for Prelim. Inj. (ECF No. 9) (Def.'s
Opp'n); Def.'s Opp'n Attach. 1
Decl. of Wendy Sawicki; Def.'s
Opp'n Attach. 2 Decl. of Yasmin Vitalius;
Def.'s Opp'n Attach. 3 Decl. of
Elizabeth Sellers. On June 14, 2018, the Plaintiffs
filed their reply together with declarations by each of them.
Reply Mem. in Support of Pls.' Mot. for Prelim.
Inj. (ECF No. 10) (Pls.' Reply);
Pls.' Reply Attach. 1 Decl. of Michael
Greene; Pls.' Reply Attach. 3 Decl. of
22, 2018, the Court entered an order denying the
Plaintiffs' motion for preliminary injunction. Order
on Mot. for Preliminary Inj. (ECF No. 18) (Order on
Preliminary Inj.). On July 31, 2018, the Plaintiffs
filed a motion to dismiss. Mot. to Dismiss (ECF No.
19). On August 21, 2018, the Defendants filed a response in
opposition to the Plaintiffs' motion to dismiss.
Resp. to Mot. to Dismiss (ECF No. 21)
(Def's. Opp'n). On August 30, 2018, the
Plaintiffs filed a reply. Reply to Resp. to Mot. to
Dismiss (ECF No. 23) (Pls.' Reply).
POSITIONS OF THE PARTIES
Greene and Debbie Bernier request that the Court dismiss the
claims in their Complaint, as:
The 2018 session of the NESI program has already taken place
without [their] child, E.G., in attendance. . . The
Plaintiffs have determined that it is counterproductive to
expend significant time, effort, and expense in pursuing a
lawsuit while they feel they need to devote their time and
energy to healing their child.
Pls.' Mot. at 2. The Plaintiffs argue that
“dismissal without prejudice should be permitted under
the rules unless the court finds that the defendant will
suffer legal prejudice, ” Id. at 2-3 (citing
P.R. Mar. Shipping Auth. v. Leith, 668 F.2d 46, 50
(1st Cir. 1981)). According to the Plaintiffs:
[i]n deciding whether to grant a Rule 41(a)(2) motion, courts
typically look to “the defendant's effort and
expense of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the
action, insufficient explanation for the need to take a
dismissal, and the fact that a motion for summary judgment
has been filed by the defendant.
Id. (citing Palmer v. Wells, No. 04-12-P-H,
2004 U.S. Dist. LEXIS 16154, at *20 (D. Me. Aug. 11, 2004)
(quoting Pace v. Southern Express Co., 409 F.2d 331,
334 (7th Cir. 1969)). The Plaintiffs argue that because
“the defendant has not filed a counterclaim, neither
party has filed a motion for summary judgment, nor have the
parties engaged in any depositions or other major
expense-generating discovery initiatives, ” the
Defendant would not be prejudiced by dismissal. Id.
does not object to dismissal, but “objects to the
‘Statement of Michael Greene and Debbie Bernier'
attached to the Plaintiffs' Motion”, which it views
as “an attempt to reargue Plaintiffs' position
which has already been rejected by this Court.”
Def.'s Opp'n at 1. The Defendant also asks
that “any dismissal of this matter . . . be binding in
any later filed action” because “Defendant had to
drop everything and file a substantive and extensive response