Arthur v. Mudd

• Court: District Court, District of Columbia
• Decided: July 28, 2010
• Docket: Civil Action No. 2007-2130
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

In re Federal National Mortgage Association Securities, Derivative, and MDLNo.1668 "ERISA" Litigation

Federal Housing Finance Agency as Civil Case No. 07-2130 (RJL) Conservator for the Federal National Mortgage Association v. Mudd, et al. Arthur)

+- MEMORANDUM ORDER (Julyn-, 2010) [#39]

This case, formerly captioned as Arthur v. Mudd, is one of four shareholder

derivative actions still pending against a long list of former officers and directors of the

Federal National Mortgage Association ("Fannie Mae").) Patricia Browne Arthur

originally brought the case, (see Compl. [# 1]), but she has since been replaced as the

shareholder derivative plaintiff by the Federal Housing Finance Agency ("FHFA"), the

statutorily-authorized conservator of Fannie Mae, (see Mem. Order [#33]). Now before

the Court is FHFA's Motion for Approval of Voluntary Dismissal without Prejudice

[#39] under Federal Rules of Civil Procedure 23.1(c) and 41(a). For the following

reasons, FHFA's motion is GRANTED.

The Federal Rules provide that a derivative action may be "voluntarily dismissed .

. . only with the court's approval." Fed. R. Civ. P. 23.1(c). Voluntary dismissal by court

order is without prejudice unless the court states otherwise. Fed. R. Civ. P. 41(a)(2).

The other cases were originally captioned as Kellmer v. Raines (Civ. No. 07- I

1173), Middleton v. Raines (Civ. No. 07-1221), and Agnes v. Raines (Civ. No. 08-1093).

1 These dismissals are generally "granted in the federal courts unless the defendant would

suffer prejudice other than the prospect of a second lawsuit or some tactical

disadvantage." Conafay v. Wyeth Labs., 793 F.2d 350,353 (D.C. Cir. 1986).

Having failed to file any opposition to FHF A's motion, the defendants have given

the Court no reason to believe that they would suffer serious legal injury if the case were

dismissed without prejudice. Local Rule of Civil Procedure 7(b) provides that if an

opposing party fails to file a memorandum in opposition within the prescribed time limit,

the court may treat the motion as conceded. LCvR 7(b). Whether to treat the motion as

conceded is highly discretionary, and our Circuit Court has noted that "[w]here the

district court relies on the absence of a response as a basis for treating the motion as

conceded, [the D.C. Circuit will] honor its enforcement of the rule." Twelve John Does v.

District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997). Because the defendants have

not opposed FHF A's motion for voluntary dismissal, the Court will treat it as conceded.

Accordingly, it is hereby

ORDERED that FHFA's Motion for Approval of Voluntary Dismissal without

Prejudice [#39] is GRANTED; and it is further

ORDERED that the case is DISMISSED without prejudice.

SO ORDERED.