Estate of Gottdiener v. Bayrock Group, LLC

674 F. App'x 104

• Court: Court of Appeals for the Second Circuit
• Decided: January 30, 2017
• Docket: No. 15-4077-cv
• Status: Published

Opinion

SUMMARY ORDER

Plaintiffs-appellees, along with their counsel, appeal from the vacatur of their notice of voluntary dismissal without prejudice, and the simultaneous dismissal of their action with’ prejudice, as well as from the prior denials of (1) their motion to remand to state court and (2) their motion to stay proceedings pending emergency hearings regarding witness tampering. This is the third federal court action commenced by plaintiffs and their counsel relating to allegations that Felix Sater engaged in a fraudulent conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., or related state fraud claims. See Kriss et al. v. BayRock Group LLC et al., 1:10-cv-3959-LGS-FM (S.D.N.Y.) (filed May 10, 2010); Estate of Gottdiener v. Sater, 36 F.Supp.3d 386 (S.D.N.Y.), on reconsideration, 35 F.Supp.3d 402 (S.D.N.Y. 2014), aff'd, 602 Fed.Appx. 652 (2d Cir. 2015); Kriss et al. v. BayRock Group LLC et al., 1:13-cv-3905-LGS (S.D.N.Y.) (filed June 7, 2013). We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.

Rule 41 of the Federal Rules of Civil Procedure 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.” Fed. R. Civ. P. 41(a)(l)(A)(i). The Rule “presupposes that the opposing party can file both” an answer and a motion for summary judgment. ISC Holding AG v. Nobel Biocare Fin. AG, 688 F.3d 98, 112 (2d Cir. 2012). We have recognized that vacatur of a notice of voluntary dismissal may be appropriate in certain “extreme” circumstances, where “the purpose of Rule 41(a)(l)[ (A) ](i) would be better served by abandoning a literal interpretation” of it. Thorp v. Scarne, 599 F.2d 1169, 1176 (2d Cir. 1979); see Johnson Chem. Co., Inc. v. Home Care Prods., Inc., 823 F.2d 28, 30-31 (2d Cir. 1987) (concluding that the- fact that a preliminary injunction hearing had been held in the case was not sufficiently “extreme” to warrant vacatur of the plaintiffs voluntary dismissal), abrogated on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

Taken together, the facts, procedural history, and other circumstances relevant to this case (including sanctions imposed on appellants’ counsel and referrals by a district court to the United States Attorney for the Eastern District of New York for investigation of counsel’s potential violations of federal criminal law) are, to say the least, extreme. We identify no error in the District Court’s decision to vacate the appellants’ Rule 41(a) dismissal or its subsequent decision to dismiss the case with prejudice under Rule 41(b).

We have considered all of the appellant’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.