United States District Court, S.D. Indiana, Indianapolis Division
NORTHERN INSURANCE COMPANY OF NEW YORK as subrogee of Koch Originals, Inc., Plaintiff,
TRAVELERS INSURANCE COMPANY, CNA INSURANCE COMPANY, HARTFORD INSURANCE COMPANY, TRAVELERS INDEMNITY COMPANY, CHARTER OAK FIRE INSURANCE COMPANY, TRAVELERS INDEMNITY COMPAY OF ILLINOIS n/k/a Travelers Property Casualty Company of America, and HARTFORD CASUALTY INSURANCE COMPANY, Defendants.
ORDER ON PENDING MOTIONS
J. McKINNEY, JUDGE.
matter is before the Court on various motions submitted by
both parties. Plaintiff Northern Insurance Company of New
York as subrogee of Koch Original, Inc.
(“Northern”), has filed a Motion for
Reconsideration of Order on Defendants' Motion to Dismiss
Plaintiff's Second Amended Complaint (“Motion to
Reconsider”) (Dkt. 80), a Motion to Dismiss (Dkt. 89),
and a Notice of Dismissal (Dkt 93). Defendants, Travelers
Indemnity Company, The Charter Oak Fire Insurance Company,
and Travelers Property Casualty Company of America's
(collectively “Travelers”), have filed a Motion
to Strike Proposed Third Amended Complaint with Prejudice or,
in the Alternative Motion to Dismiss Third Amended Complaint
with Prejudice (“Motion to Strike”) (Dkt 85), and
a Response in Opposition to Plaintiff's Motion to Dismiss
Without Prejudice and Brief in Support of Motion for
Attorneys' Fees (“Motion for Fees”) (Dkt.
91). The Court will address each of these motions with this
December 14, 2016, this Court granted Travelers' Motion
to Dismiss Northern's Second Amended Complaint
(“Order”) without prejudice. Dkt. 78. The Court
stated that Northern had 28 days to amend its complaint and
admonished that failure to do so would result in a dismissal
with prejudice. Id.
January 11, 2017, the 28th day after entry of the December
14, 2016, Order, Northern filed its Motion to Reconsider.
Dkt. 80. In support, Northern argues that each of the four
grounds that the Court found for dismissing the Second
Amended Complaint were in error. Northern also states that
“if the choice of words in the Plaintiff's Second
Amended Complaint was not sufficient to present a claim for
relief, then Northern's proposed Third Amended Complaint
… will overcome that shortcoming.” Dkt. 81 at
8-9. Northern attached its Third Amended Complaint as an
exhibit to its Motion to Reconsider. Dkt. 81, Ex. 1. The
Third Amended Complaint added George Koch Sons, Inc.,
George Koch (a Corporation) (collectively “George Koch
January 25, 2017, Travelers filed its Motion to Strike. Dkt.
85. Travelers argues that Northern's attachment of the
Third Amended Complaint, in lieu of actually filing, did not
comply with the Court's order and therefore dismissal
with prejudice is warranted. Dkt. 86 at 2-3. Travelers also
renews its arguments set forth in its first Motion to Dismiss
Plaintiff's Second Amended Complaint (Dkt. 50) to support
dismissal of Northern's Third Amended Complaint. Dkt. 86
at 3-8. Travelers further alleges that the Third Amended
Complaint fails to assert that George Koch Sons is a joint
tortfeasor with Koch Originals.
January 27, 2017, Northern filed its Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 41(a)(1),
requesting that the Court dismiss this cause of action
without prejudice. Dkt. 89.
February 9, 2017, Travelers filed its Motion for Fees. Dkt.
91. In its Motion for Fees, Travelers renewed its arguments
that dismissal with prejudice is warranted for Northern's
failure to timely file the Third Amended Complaint. Travelers
acknowledges that Rule 41 provides that a “plaintiff
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.” Dkt. 90 at
4-5 (citing Rule 41(a)(1)(A)(i)). Travelers argues, however,
that Rule 41(a)(1)(A)(i) is inapplicable as the Court has
already ruled on the merits of this case. Id. In the
alternative, if the Court dismisses the case without
prejudice, Travelers requests reimbursement for
attorneys' fees and costs expended in defending this
lawsuit. Id. at 7-9; see also, Dkt. 91,
¶¶ 7-13. Counsel for Travelers attached an
affidavit that stated Travelers “had incurred $95,
278.97 in attorneys' fees” defending this action.
Dkt. 1, Ex. 1, ¶ 8.
Northern's response to Travelers' Motion for Fees,
Northern concedes that its previous arguments on
Northern's Motion to Dimiss as to the Direct Action rule
were incorrect. Dkt. 92 at 3 (“Although Northern
initially disagreed with Travelers' arguments, as
evidence by its Motion to Reconsider, further reflection
revealed that Travelers' arguments had some
merit.”). It did not address the other arguments for
dismissal. Northern states that it seeks to correct its error
by withdrawing “its direct action against Travelers and
to set the stage for a direct action against Travelers'
insured, [George Koch Sons], and an action for Declaratory
Judgment against Travelers, wholly consistent with
Travelers' arguments.” Id. at 3-4.
Northern also claims that its Motion to Dismiss should be
treated as a notice of dismissal under Rule 41(a)(1)(A)(i),
since Travelers has not filed an answer or a motion for
summary judgment. Id. at 4-6. Northern further
argues that the $95, 000.00 sought for reimbursement is
excessive. Id. at 7-8.
February 16, 2017, Northern filed a Notice of Dismissal,
pursuant to Rule 41(a)(1)(A)(i).
requests that the Court dismiss the instant case with
prejudice or, in the alternative, issue costs and fees
pursuant to Rule 41. Travelers first argues that Northern
violated this Court's Order when it attached, rather than
filed, the Third Amended Complaint. Because the Third Amended
Complaint was not “filed, ” the Court should
dismiss this action with prejudice as stated in the Order and
based on the “[p]rincipals of fairness and
equity[.]” Dkt. 90 at 4.
Court may dismiss a case with prejudice “if the
plaintiff fails to prosecute or to comply with the [Federal
Rules of Civil Procedure].” Rule 41(b). “The
court should exercise this right sparingly and should dismiss
a case under Rule 41 only ‘when there is a clear record
of delay or contumacious conduct, or when other less drastic
sanctions have proven unavailing.'” Salata v.
Weyerhaeuser Co., 757 F.3d 695, 699 (7th Cir. 2014)
(citing Webber v. Eye Corp., 721 F.2d 1067, 1069
(7th Cir. 1983)).
does not argue that Northern's failure to file has caused
an undue delay or risen to the level of obstinacy to warrant
dismissal with prejudice. Moreover, the purpose of a
complaint is to provide fair notice of a plaintiff's
claim and its basis. See Windy City Metal Fabricators
& Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536
F.3d 663, 667 (7th Cir. 2008). Although Northern attached its
Third Amended Complaint to its Motion to Reconsider, rather
than filing it, it nonetheless put Travelers on sufficient