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Santander Consumer Usa Inc v. Frank T. Pearson and Donna K. Pearson

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


February 10, 2011

SANTANDER CONSUMER USA INC., PLAINTIFF,
v.
FRANK T. PEARSON AND DONNA K. PEARSON, DEFENDANTS;
AND FRANK T. PEARSON AND DONNA K. PEARSON, COUNTER-CLAIMANTS,
v.
SANTANDER CONSUMER USA INC., COUNTER-DEFENDANT;
AND FRANK T. PEARSON AND DONNA K. PEARSON, THIRD PARTY PLAINTIFFS,
v.
HSBC BANK, HSBC AUTO FINANCE, FBI, DIRECTOR OF FBI, CUMBERLAND COUNTY SHERIFF, AND CUMBERLAND COUNTY SHERIFF'S OFFICE, THIRD PARTY DEFENDANTS.

The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Defendants/Counter-Claimants/Third Party Plaintiffs Frank T. Pearson and Donna K. Pearson's ("the Pearsons") motion to dismiss Third Party Defendants the FBI, Director of the FBI, Cumberland County Sheriff, and Cumberland County Sheriff's Office (Doc. 9). This action was initially filed in the Circuit Court of Cumberland County, Illinois, and was removed to this Court by Third Party Defendants FBI and Director of the FBI under

28 U.S.C. § 1442. The FBI and Director of the FBI have also filed a joint motion to dismiss with prejudice (Doc. 3). For the reasons set forth below, the Court GRANTS the Pearsons' motion to dismiss with prejudice as to the FBI, Director of the FBI, Cumberland County Sheriff, and Cumberland County Sheriff's Office.

None of the above-named Third Party Defendants have served an answer or a motion for summary judgment, so the Court construes the Pearsons' "Motion to Dismiss" as a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). The Pearsons' notice of dismissal does not state whether it is with or without prejudice, so it would ordinarily be considered a dismissal without prejudice. FED.R.CIV.P. 41(a)(1)(B). However, Rule 41(a)(1)(B) also provides that "if the plaintiff previously dismissed any federalSor stateScourt action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." FED.R.CIV.P. 41(a)(1)(B).

The Pearsons filed a complaint in this District on November 29, 2010, naming HSBC Bank, HSBC Auto Finance, Santander Consumer USA Inc., FBI, Director of FBI, Cumberland County Sheriff, and Cumberland County Sheriff's Office as defendants. Judge J. Phil Gilbert was the presiding Judge over the matter, case number 10-cv-959-JPG-SCW. The Pearsons' complaint in that case is identical to their counter-claim/third party complaint in this action (10-cv-959-JPG-SCW, Doc. 1). On January 31, 2011, the Pearsons moved the Court to dismiss the case as to all Defendants ( 10-cv-959-JPG-SCW, Doc. 40). As is the case here, Defendants in that action had yet to file either an answer or a motion for summary judgment, and Judge Gilbert construed the Pearsons' filing as a notice of voluntary dismissal (10-cv-959-JPG-SCW, Doc. 44). On the basis of the Pearsons' notice of voluntary dismissal, the case was dismissed without prejudice (10-cv-959-JPG-SCW, Doc. 44).

Because the Pearsons have previously dismissed a federal action based on the exact same claim as they bring here, their pending notice of dismissal constitutes an adjudication on the merits as to the FBI, Director of the FBI, Cumberland County Sheriff, and Cumberland County Sheriff's Office pursuant to Federal Rule of Civil Procedure 41(a)(1)(B), the so-called "two dismissal" rule. See Friedman v. Washburn Co., 145 F.2d 715, 719 (7th Cir. 1944) ("The rule involved provides that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state [an] action based on or including the same claim.) This will therefore be a dismissal with prejudice. The pending dismissal here plainly fits within the language authorizing a "two dismissal" adjudication pursuant to Rule 41(a)(1)(B). The Court also finds that application of this rule to the Pearsons' duplicative filing is apt, given that "[t]he purpose of the 'two dismissal' rule.is to prevent unreasonable abuse and harassment by plaintiff securing numerous dismissals without prejudice." Sutton Place Development Company v. Abacus Mortgage Investment Company, 826 F.2d 637, 640 (7th Cir. 1987) (internal quotations and citations omitted).

The Court notes that it would otherwise grant Third Party Defendants' FBI and Director of the FBI's motion to dismiss with prejudice. The basis of that motion is lack of sufficient service comporting with the dictates of Federal Rule of Civil Procedure 4(i) upon either party. There is no indication that the Pearsons served the FBI or the Director of the FBI in accordance with Rule 4(i). However, as the Court is dismissing all of the above-enumerated Third Party Defendants upon the Pearsons' motionSand is dismissing the claims against them with prejudiceSthe motion to dismiss of the FBI and the Director of the FBI will be termed as MOOT.

Prior to their notice of dismissal, the Pearsons filed motions for default judgment against the FBI and the Director of the FBI (Doc. 4) and against the Cumberland County Sheriff and the Cumberland County Sheriff's Office (Doc. 7). Based on their subsequent notice of voluntary dismissal, these motions will be DENIED AS MOOT.

The notice of voluntary dismissal of Defendants/Counter-Claimants/Third Party Plaintiffs Frank T. Pearson and Donna K. Pearson is hereby accepted by the Court. The Pearson's pending "Motion for Dismissal" will be GRANTED. The third party claims of Frank T. Pearson and Donna K. Pearson against Third Party Defendants the FBI, Director of the FBI, Cumberland County Sheriff, and Cumberland County Sheriff's Office are therefore dismissed with prejudice. The Clerk of the Court is ORDERED to modify the docket in this case consistent with party designation in the above-styled caption, and to indicate the termination of the above-dismissed third party defendants.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge

20110210

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