United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
before the Court are the Motion to Dismiss filed by Defendant
Leisure Properties, LLC (“Leisure”) (Doc. 46) and
the Motion to Dismiss filed by Plaintiffs, David and Kimberly
Ripper (Doc. 50). For the following reasons, Leisure's
Motion is DENIED as MOOT and the
Rippers' Motion is GRANTED over
and Factual Background
to the Amended Complaint (Doc. 44), Plaintiffs David and
Kimberly Ripper purchased a 2014 Crownline Cruiser 350 boat
for $232, 357.10 from Wilson Marine Corp. at a boat show in
Detroit, Michigan on February 28, 2014. They took delivery of
the boat on April 18, 2014. Almost immediately, they noticed
various problems with the boat: non-functioning appliances; a
defective tachometer; an inaccurate fuel gauge; and, an
under-performing engine. By February 2015, Crownline, the
manufacturer, transported the boat to its factory to make
repairs and returned it to the Rippers in May 2015. The
Rippers continued to have issues with the boat including
water leaks, engine failure, defective gauges, and various
cosmetic defects. Crownline made no further repairs to the
boat. The Rippers consulted an expert about the problems with
the boat. He concluded that they stem from a lightning strike
prior to the purchase of the boat that could have easily been
averted by the installation of a lightning protection system.
Rippers filed an eight count Complaint in the Circuit Court
of Wayne County, Michigan against Leisure Properties, LLC
(“Leisure”), d/b/a Crownline Boats on April 20,
2018 (Doc. 1-1). They asserted breach of warranty claims
under Michigan state law and the Magnuson-Moss Warranty Act
and violations of Michigan's Consumer Protection Act.
Leisure removed the case to the District Court for the
Eastern District of Michigan pursuant to 28 U.S.C.
§§ 1332 and 1441 on the bases of diversity and
federal question jurisdiction. The case was transferred to
this Court on September 11, 2018, because of an enforceable
forum selection clause contained in the boat's
Owner's Manual (Doc. 9).
the case was transferred, the discovery deadline was set for
September 6, 2019 (Doc. 40). The Rippers were subsequently
granted leave to amend the complaint, which they did on March
9, 2019 (Doc. 44). This matter is set for a jury trial on
January 27, 2020 (Doc. 49).
Amended Complaint dropped the Michigan state law claims and
contains two counts for breach of warranty under the
Magnuson-Moss Warranty Act and Illinois law, and violations
of Illinois' Consumer Fraud and Deceptive Business
Practices Act (Doc. 44). In Count 1, the Rippers allege that
the boat “was not fit for one or more of the ordinary
purposes for which boats are used” and that Leisure
breached its written warranty and implied warranty of
merchantability by failing to make necessary repairs and for
selling an unfit boat. 810 Ill. Comp. Stat. § 5/2-314.
In Count 2, the Rippers allege that Leisure's agent (i.e.
Wilson Marine Corp.) used deception and fraud in order to
sell the boat by falsely promising that the boat would be
detailed and immaculately inspected prior to delivery and by
failing to disclose obvious defects. 815 Ill. Comp. Stat.
motion to dismiss (Doc. 46) argues the Rippers fail to state
a claim and lack standing to assert claims under Illinois
law. The Rippers did not respond to the Motion, but instead,
and within the time period for a response, filed a motion
seeking dismissal without prejudice so that they may refile
the case in Michigan against Wilson Marine Corp. Leisure
objects to dismissal without prejudice, arguing it will be
unduly prejudiced if the Rippers are allowed to refile their
lawsuit in another jurisdiction.
dismissal of a plaintiff's Complaint without prejudice
under Rule 41(a)(2) is within the district court's sound
discretion. See Tyco Labs., Inc. v. Koppers Co., 627
F.2d 54, 56 (7th Cir. 1980). In deciding whether to grant a
Rule 41(a)(2) motion to dismiss, courts should consider a
variety of factors, including: (1) a defendant's effort
and resources already expended in preparing for trial; (2)
excessive delay and lack of diligence on the part of
plaintiff in prosecuting the action; (3) insufficient
explanation for the need of a dismissal; and (4) whether a
summary judgment motion has been filed by defendant.
Id., at 56. There is no mandate that each and every
factor be resolved in favor of the moving party before
dismissal is appropriate; the factors are merely a guide for
Leisure opposes dismissal without prejudice on several
grounds. It argues the Rippers lacked diligence in bringing
their motion, that they are attempting to forum shop by
dismissing their claims here and refiling them in Michigan,
that they it has already expended significant resources in
defending this matter, and that it has filed a dispositive
motion to dismiss that should result in dismissal with
prejudice. In support, Leisure relies on Wojtas v.
Capital Guardian Trust Co., 477 F.3d 924 (7th Cir.
Wotjas, a breach of fiduciary action, the plaintiffs
sought dismissal without prejudice of a case that was
time-barred in Wisconsin in order to file suit in Illinois,
which has a longer statute of limitations. Id. at
925-926. Their motion was filed after the defendant filed a
motion for judgment on the pleadings setting forth the
statute of limitations defense. The Seventh Circuit affirmed
the denial of plaintiffs' motion to dismiss because
defendant “having acquired a right to assert the
statute of limitations bar by operation of Wisconsin law,
would suffer plain legal prejudice if the [plaintiffs']
motion for voluntary dismissal were granted.”
Id. at 927-928.
in Wotjas, the relevant factors in this case weigh
in favor of voluntary dismissal. This litigation, although
pending since June 4, 2018, it is not at an advanced stage
procedurally. Discovery is still on-going and trial is not
set until 2020. While Leisure has expended effort in motion
practice and discovery, such efforts do not outweigh
Plaintiffs right to seek dismissal of their case. As Leisure
points out, it has not “had the opportunity to even
substantively answer any of the Plaintiffs' claims”
because this matter is still at the pleading stage. And,
although there has been some delay in the progress of this
case, it has not been excessive or due to lack of diligence.
no plain legal prejudice would ensue with dismissal. Contrary
to Leisure's presumption, it is not a foregone conclusion
that its motion to dismiss would be granted or that it would
be conclusively dispositive. Accordingly, Plaintiffs Motion
to Dismiss pursuant to Rule 41(a)(2) (Doc. 50) is
GRANTED. This matter is D ...