United States District Court, D. Massachusetts
BRIAN LENFEST, individually and on behalf of all others similarly situated, Plaintiff,
VERIZON ENTERPRISE SOLUTIONS, LLC, Defendant.
MEMORANDUM & ORDER
NATHANIEL M. GORTON, District Judge.
This case involves a putative class action brought by Brian Lenfest ("Lenfest"), who claims that defendant Verizon Enterprise Solutions, LLC ("Verizon") violated the Massachusetts Consumer Protection Act, M.G.L. c. 93A, and was unjustly enriched by failing to disclose minimum monthly charges for long distance telephone service.
Pending before the Court is defendant's motion to strike and request for leave to file a bill of costs. For the reasons that follow, the Court will allow, in part, and deny, in part, Verizon's motion.
I. Procedural History
On September 29, 2014, this Court issued a Memorandum & Order that allowed Verizon's motion to compel arbitration. The case was stayed pending arbitration and the parties were instructed to submit a joint status report with respect to the progress of the arbitration proceeding on March 31, 2015 and every six months thereafter.
On December 11, 2014, 74 days after this Court compelled arbitration, Lenfest filed a notice of voluntary dismissal. Lenfest stated that, pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i), he was dismissing the action with prejudice and without costs to either party. He also noted that "[t]he purpose of this dismissal is so that Plaintiff can seek immediate review" of the September, 2014 Order compelling arbitration.
The following day, Verizon requested that the Court defer from entering the dismissal to give it time to file a response to Lenfest's notice of voluntary dismissal.
On December 19, 2014, Verizon filed a motion (1) seeking to strike the portion of plaintiff's notice of voluntary dismissal that purports to authorize his right to seek immediate review of this Court's Order compelling arbitration and (2) requesting leave to file a bill of costs pursuant to Fed.R.Civ.P. 54(d)(1).
II. Motion to Strike
In support of its motion to strike, Verizon argues that Lenfest's notice of voluntary dismissal is legally flawed and cannot authorize an appeal of this Court's decision to compel arbitration and stay the case. Verizon asserts that plaintiff is attempting to evade the statutory prohibition on interlocutory appeals of stay orders set forth in the Federal Arbitration Act ("FAA"). See 9 U.S.C. § 16(b)(1). Moreover, defendant contends that the First Circuit's "narrow exception" to the general rule that an interlocutory order cannot be appealed, established in John's Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 107 (1st Cir. 1998), is inapplicable here.
Lenfest responds that Verizon's motion to strike is improper under Fed. R. Civ. 12(f) because his own notice of voluntary dismissal is not a "pleading." Moreover, plaintiff contends that he is entitled to an immediate appeal of the Court's September, 2014 Order for two reasons. Rather than violating the FAA's ban on interlocutory appeals, he asserts that (1) once his voluntary dismissal is entered it becomes a final decision appealable pursuant to 9 U.S.C. § 16(a)(3) and (2) the form of his notice of voluntary dismissal satisfies the exception created by the First Circuit that entitles a party to seek review of an otherwise non-appealable interlocutory order so long as certain requirements are met.
Lenfest filed his notice of voluntary dismissal with prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i), which allows a plaintiff to dismiss an action without a court order so long as the opposing party has yet to file an answer or a motion for summary judgment. Here, Verizon had filed neither and thus Lenfest's notice of voluntary dismissal is permitted as of right. Universidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 19 (1st Cir. 1985). The dismissal automatically became effective upon the filing of the notice. Jones, Blechman, Woltz & Kelly, PC v. Babakaeva, 375 F.Appx. 349, 350 (4th Cir. 2010).
In fact, Verizon does not contend that Lenfest failed to meet the requirements of Fed.R.Civ.P. 41(a)(1)(A)(i). Instead, it argues that before entering the requested dismissal, the Court should strike the language from Lenfest's notice that he is dismissing the action with prejudice in ...