UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Rubygold Main Holdings, LLC

v. Civil No. 20-cv-1006 -JL Opinion No.

Brian Gardner Carpentry, LLC

SUMMARY ORDER ON PENDING MOTIONS

Following the court’s July 2, 2021 order (doc no. 60) on the parties’ motions for

summary judgment, the parties have filed and briefed two additional motions. Defendant Brian

Gardner Carpentry, LLC moves for reconsideration of the court’s summary judgment order and

asks the court to vacate its rulings denying Gardner’s motion for summary judgment as to Counts

4 and 5 of Plaintiff Rubygold’s complaint.1 Rubygold moves for voluntary dismissal, without

prejudice, of its claims in this case.2 This order addresses both motions.

I. Motion for reconsideration

Gardner’s motion for reconsideration is denied for the following reasons.

Reconsideration is an “extraordinary remedy which should be used sparingly.” Palmer v.

Champion Mortg.,

(1st Cir. 2006). A motion for reconsideration is not “a

vehicle for a party to . . . advance arguments that could and should have been presented to the

district court prior to” its underlying order. United States v. Allen,

(1st Cir.

2009) (quoting Iverson v. City of Boston,

(1st Cir. 2006)). Nor is it an

opportunity “to regurgitate old arguments previously considered and rejected.” Biltcliffe v.

1 Doc. no. 61. 2 Doc. no. 63. CitiMortgage, Inc.,

(1st Cir. 2014) (internal punctuation omitted). Instead, the

movant “shall demonstrate that the order was based on a manifest error of fact or law.” L.R.

7.2(d).

The court must deny Gardner’s motion because it re-raises a number of arguments that

the court has already considered and rejected and raises supposedly “new” arguments that could

and should have been presented during the lengthy briefing and argument of the underlying

summary judgment motion. In any event, none of the alleged errors of fact or law that Gardner

identifies in its motion are manifest or meaningfully affected the court’s original rulings.

Gardner is free to raise these arguments in state court if it moves to dismiss Rubygold’s abuse of

process and slander of title claims there, but they do not warrant reconsideration, let alone

reversal, of this court’s summary judgment order.

II. Motion to dismiss

Rubygold moves to dismiss this action without prejudice under Rule 41(a)(2) of the

Federal Rules of Civil Procedure. It alleges that it has filed a new lawsuit in Grafton County

Superior Court against Gardner, re-asserting its remaining claims in this lawsuit for abuse of

process and slander of title, as well as two declaratory judgment claims.3 Rubygold thus seeks

dismissal of this case without prejudice so it can proceed in state court. Gardner objects, arguing

that Rubygold seeks a “do-over” in state court to avoid certain rulings from this court.4

Rule 41(a)(2) permits a plaintiff to request dismissal of an action “by court order, on

terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). “The rule allows a plaintiff to

voluntarily dismiss his own case as long as ‘no other party will be prejudiced.’” Colon-Cabrera

3 See Rubygold’s State Court Complaint, doc. no. 63-1. 4 See Gardner’s Objection to Motion to Dismiss, doc. no. 65-1.

2 v. Esso Standard Oil Co.,

(1st Cir. 2013) (quoting P.R. Mar. Shipping Auth. v.

Leith,

, 50 (1st Cir. 1981)). Dismissal without prejudice is the norm, “unless the

court finds that the defendant will suffer legal prejudice.” Leith, 668 F.2d at 50.

In exercising its discretion to dismiss a case under Rule 41(a)(2), the court may look at

“the defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence

on the part of the plaintiff in prosecuting the action, insufficient explanation [of] the need to take

a dismissal, and the fact that a motion for summary judgment has been filed by the defendant.”

Colon-Cabrera,

(quoting Doe v. Urohealth Sys., Inc.,

(1st Cir.

2000)). Here, each of these factors favors dismissal without prejudice (with one exception,

discussed below) and any purported prejudice to Gardner resulting from the dismissal will be

minimal.

Effort and expense. Notwithstanding the flurry of early motion practice, this case

remains in the early stages. The parties have not proposed a litigation schedule or discovery

plan, the court has not held a preliminary pretrial conference, and the case has not yet been

scheduled for trial. In addition, although the parties have conducted some written discovery,

neither side appears to have taken any depositions yet. And while the court has no reason to

doubt Gardner’s allegation that it has expended substantial effort and expense in defending this

case, the product of most of that effort can be utilized to defend against the state court case. For

example, any documents or interrogatory answers produced in this case can be used in the state

court case. Gardner can also repurpose most of its motions, other pleadings, exhibits, and

supporting documents filed in this case (aside from portions of those materials relating to the

Anti-Injunction Act or other federal abstention and related doctrines) in the state court case. A

3 dismissal without prejudice would not waste Gardner’s already-expended effort and expense in

this case.

Excessive delay or lack of diligence. Rubygold has not shown a lack of diligence in

prosecuting this action or otherwise delayed its resolution. It filed a motion for preliminary

injunction on the same day it filed suit and filed a motion for summary judgment (which

advanced several good faith arguments on the merits of Count 2) while its preliminary injunction

motion was still under advisement. This factor also weighs in favor of dismissal without

prejudice.

Explanation of reasons for dismissal. While Rubygold’s motion to dismiss is concise,

it provides sufficient reasons – particularly, the filing of the state court lawsuit – for its request to

dismiss this lawsuit without prejudice.5 Rubygold also correctly points out in its motion that the

core of its case against Gardner is the resolution of Count 2 regarding lien priority, and this court

has already determined that it cannot rule on the merits of that claim without violating the Anti-

Injunction Act. Rather than appeal that decision, Rubygold has elected to have all of its

remaining claims decided in state court. That is a more-than-sufficient reason for dismissing this

suit without prejudice.6

Pending motions. Gardner argues that its fully briefed motion for reconsideration is a

basis to deny Rubygold’s dismissal request. That concern is moot as the court is

contemporaneously denying Gardner’s motion for reconsideration in this order. There are also

no summary judgment or other dispositive motions pending, as the court has already ruled on

5 Rubygold further elaborated on these reasons for seeking a voluntary dismissal in its Reply. See Doc. No. 66. 6 It is also not lost on the court that it has intimated in prior orders that the New Hampshire Superior Court may be the better forum for Rubygold’s claims. 4 Gardner’s motion for summary judgment. Had Rubygold sought voluntary dismissal in response

to Gardner’s motion for summary judgment, the court would have viewed its dismissal request

differently.

Additional factors. Finally, the court addresses several other arguments from Gardner’s

objection to Rubygold’s motion to dismiss. None of those arguments show that Gardner will be

prejudiced by dismissing this case without prejudice.

Contrary to Gardner’s objection, the court has not given its “views on nearly all the legal

and factual issues” in this case. Nor does Gardner explain what “numerous rulings” Rubygold

seeks to avoid by filing suit in state court. The court did not reach the merits of Rubygold’s

equitable claims, instead ruling that the Anti-Injunction Act prevented it from issuing the

equitable relief requested in those claims. It also did not decide the merits of the abuse of

process or slander of title claims because it found that factual disputes precluded summary

judgment for Gardner on those claims. Rubygold would therefore not be “doing over” any of

those claims in state court.7

The only claim that the court arguably decided on the merits was Rubygold’s Consumer

Protection Act claim, and the court ruled in Gardner’s favor on that claim. Rubygold has not re-

asserted its CPA claim in the new state court case. Gardner nonetheless argues that if this action

is dismissed without prejudice before the appeal period runs, Rubygold could amend its state

court complaint to add a CPA claim. Rubygold responds that it does not intend to revive the

CPA claim in state court, but would not object if this court dismissed that claim with prejudice.8

7 The court offers no opinion on Rubygold’s decision to file a separate lawsuit in the Grafton County Superior Court (as opposed to intervening in the current lawsuit), which Gardner calls “forum shopping.” 8 See Reply Memo., doc. no. 66-1, at 3 (“Plaintiff has no objection if the Court wishes to dismiss only Count VI with prejudice”). 5 While the court has no reason to question Rubygold’s counsel’s assurance that it will not seek to

add a CPA claim to its state court lawsuit, it finds that dismissal of the CPA claim with prejudice

will eliminate any perceived unfairness or prejudice to Gardner (however minimal that may be).

See JRA Architects & Project Managers, P.S.C. v. First Fin. Grp., Inc.,

(1st

Cir. 2010) (the court may “impos[e] conditions on the dismissal to ensure that [the defendant] is

not unduly prejudiced by the dismissal”).

Moreover, Gardner’s concern about a state court jury “completely undo[ing] the factual

findings already made” by this court is misplaced. As noted above, this court did not reach the

merits of Rubygold’s slander of title and abuse of process claims. It also did not make “factual

findings” in its prior orders. The factual background summaries in those orders were based on

agreed-upon submissions by the parties (a joint statement of facts, joint timeline, and exhibits),

not independent fact finding by the court. The parties can use those jointly submitted factual

statements and exhibits in the state court proceeding, if necessary.

Lastly, Gardner argues that the court should not dismiss the case without prejudice

because the appeal period has not run on the court’s prior orders and a dismissal without

prejudice would allow Rubygold to “attempt to revive [Counts 1-3] in another federal court.”

While the court agrees that a dismissal without prejudice may not prevent Rubygold from filing a

subsequent federal lawsuit alleging these same claims, that scenario seems highly unlikely given

the court’s Anti-Injunction Act rulings, as well as the fact that Rubygold is now seeking to

adjudicate these claims in state court. In any event, the “mere prospect of a subsequent lawsuit

does not constitute . . . prejudice.” Colon-Cabrera,

(citing Urohealth Sys., Inc.,

).

6 In sum, this is not a situation in which Rubygold proposes “to dismiss the case at a late

stage of pretrial proceedings, or seeks to avoid an imminent adverse ruling.” Colon-Cabrera,

. The other factors discussed above also demonstrate that any prejudice to Gardner

resulting from the dismissal of this case without prejudice will be minimal. Rubygold’s motion

to dismiss is granted and the case is dismissed without prejudice, with the exception of its CPA

claim (Count 6), which is dismissed with prejudice. The clerk shall enter judgment accordingly

and close the case.

SO ORDERED.

_____________________________ Joseph N. Laplante United States District Judge Dated: August 10, 2021

cc: Edmond J. Ford, Esq. Marc W. McDonald, Esq. W. E. Whittington, Esq.

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