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UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

NEWMONT GHANA GOLD LIMITED,

et al.,

Plaintiffs,

v. Lead Case No. 3:11cv62/MCR/CJK

(Case No. 3:11cv140/MCR/CJK)

HILLER SYSTEMS, INC.; DAVIS &

ADAMS CONSULTING SERVICES,

INC.; PROENERGY INTERNATIONAL 

SERVICES, INC.; and PLAINVILLE

ELECTRICAL PRODUCTS CO., INC.

a/k/a PEPCO,

Defendants.

_______________________________/

ORDER

Several motions to dismiss are pending in this case, with requests for jurisdictional

discovery, as well as two motions to strike Plaintiffs’ notice of voluntary dismissal (docs. 24

& 26), and Plaintiffs’ motion requesting a scheduling conference (doc. 60). Now, having

been fully advised, court concludes that the motions to strike and request for scheduling

conference will be denied, and limited jurisdictional discovery will be permitted to proceed.

Background

Plaintiffs together comprise a mining consortium in the Republic of Ghana,

consisting of Newmont Ghana Gold Limited, Anglogold Ashanti (Ghana) Limited, and

Golden Star (Bogoso/Prestea) Limited, each incorporated in Ghana, and have brought suit

against Defendants Hiller Systems, Inc. (“Hiller”), a Virginia corporation that maintains and

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conducts business in Florida; Davis & Adams Consulting Services, Inc. (“DACON”), a

Florida corporation; ProEnergy International Services, Inc. (“ProEnergy”), a Missouri

corporation; and Plainville ElectricalProductsCo., Inc. (“PEPCO”), a Connecticut company,

based on the court’s diversity jurisdiction. See 28 U.S.C. § 1332(a). The suit stems from 1

a fire that occurred in the consortium’s Ghana Mining Industry Reserve Power Plant in

Ghana. At the time of the fire in 2008, ProEnergy was the operator of the plant pursuant

to a contract with Plaintiffs that includes a London arbitration clause. Prior to that, in 2007,

Plaintiffs had contracted with DACON to redesign, refurbish, and upgrade the turbine

generator and fire suppression system at the plant, and DACON, in turn, had

subcontracted portions of the work to Hiller and PEPCO. The complaint includes claims

of negligence, breach of warranty, and breach of contract, and Plaintiffs seek over $3

million in damages resulting from the fire. 

ProEnergy filed a motion to dismiss in favor of arbitration (doc. 16), based on the

London arbitration clause in its contract with Plaintiffs. Subsequently, Plaintiffs filed a

notice of dismissal as to ProEnergy (doc. 22). See Fed. R. Civ. P. 41(a)(1)(A)(i). Hiller

moved to strike the notice of dismissal (doc. 24), arguing Plaintiff should have obtained the

consent of all defendants or leave of court for the notice of dismissal to be effective

because Hiller had already filed an answer. PEPCO joined the motion to strike (doc. 26). 

PEPCO then filed a motion to dismiss the complaint (doc. 31) and a motion to dismiss

Hiller’s amended crossclaim against PEPCO (doc. 43), citing lack of personal jurisdiction 2

as the basis for both motions due to its lack of contacts with the state of Florida. 

Subsequently, the court entered a stay of discovery and stay of Rule 26 disclosures as to

Plaintiffs initially brought two identical actions, one in state court and one in federal court. Defendant

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ProEnergy removed the state court action to federal court, and the cases were consolidated with this as the

Lead Case. (Doc. 19.)

Hiller filed an amended answer with a counterclaim against Plaintiffs and cross claims against

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DACON, PEPCO, and ProEnergy (doc. 28); Hiller subsequently filed a second amended answer with cross

claims against DACON and PEPCO and a third-party claim against ProEnergy (doc. 41). Third-Party

Defendant ProEnergy has filed a motion to dismiss Hiller’s third-party complaint (doc. 55, corrected at doc.

56), which Hiller opposes (doc. 62). This motion will be addressed by separate order.

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PEPCO, pending resolution of its motions to dismiss (doc. 48). Plaintiffs responded in

opposition to the motions and requested jurisdictional discovery regarding PEPCO’s

activities in the state of Florida (doc. 37). Hiller adopted Plaintiffs’ response (doc. 50). 

Discussion 

With regard to the motions to strike, the court finds them lacking in merit. Hiller and

PEPCO moved to strike Plaintiffs’ voluntary dismissal of ProEnergy, arguing that Hiller had

already filed an answer at the time the notice was filed, and that therefore, Plaintiffs should

have obtained the consent of all defendants in order for the voluntary dismissal to be

effective without a court order. Rule 41(a)(1) permits a plaintiff to 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)(1)(A)(i), or by filing “a

stipulation of dismissal signed by all parties who have appeared,” Fed. R. Civ. P. 

41(a)(1)(A)(ii). Voluntary dismissal in these circumstances is self executing and ordinarily

operates without the need of a court order. See Univ. of S. Ala. v. Am. Tobacco Co., 168

F.3d 405, 409 (11th Cir. 1999). In this case, ProEnergy had not filed an answer or

summary judgment motion at the time Plaintiffs filed the notice of voluntary dismissal

regarding ProEnergy. Accordingly, the Plaintiffs’ notice of dismissal was self executing,

and the fact that another defendant, Hiller, had previously filed an answer is of no

consequence. See Plains Growers, Inc. By and Through Florists’ Mut. Ins. v. Ickes-Braun

Glasshouses, Inc., 474 F.2d 250, 253-55 (5th Cir. 1973) (holding, in circumstances where 3

one defendant had filed an answer but the defendant who was subject to the voluntary

dismissal had not, that a “plaintiff is entitled to a dismissal against one defendant under

Rule 41(a), even though the action against another defendant would remain pending”). 

Because Plaintiffs’ voluntary dismissal was effective, its proceeding against ProEnergy is

therefore rendered a nullity. See Univ. of S. Ala, 168 F.3d at 409. For these reasons, the

motions to strike the voluntary dismissal (docs. 24 & 26) will be denied, and ProEnergy’s

See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting the case

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law of the former Fifth Circuit developed before October 1, 1981, as precedent for this circuit).

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motion to dismiss in favor of arbitration (doc. 16) is moot. 

With regard to PEPCO’s motions to dismiss for lack of personal jurisdiction, see

Fed. R. Civ. P. 12(b)(2), which the Plaintiffs and Hiller have opposed with affidavits, the

court finds that limited jurisdictional discovery is appropriate. See Chudasama v. Mazda

Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (acknowledging that limited discovery

may be necessary before the court can make a meaningful ruling on a motion to dismiss

for lack of personal jurisdiction). Accordingly, Plaintiffs, Hiller, and PEPCO are permitted

to engage in discovery for a period of sixty (60) days, limited to the issue of whether this

court has personal jurisdiction over PEPCO. 

Finally, the court entered an order staying all other discovery and disclosures (doc.

61) subsequent to Plaintiffs’ request for a scheduling conference. In light of that stay,

which remains in effect pending resolution of the motions to dismiss with the exception of

the limited jurisdictional discovery permitted by this order, the court finds it is appropriate

to deny Plaintiffs’ motion for a scheduling conference at this time. 

Accordingly, it is hereby ORDERED:

1. Hiller’s Motion to Strike Notice of Dismissal (doc. 24) is DENIED. 

2. PEPCO’s Motion to Strike Notice of Dismissal (doc. 26) is DENIED. 

3. ProEnergy’s Corrected Motion to Dismiss in Favor of Arbitration (doc. 16) is

MOOT.

4. Plaintiffs, Hiller, and PEPCO shall engage in discovery for a period of sixty

(60) days limited to the issue of whether this court has personal jurisdiction

over PEPCO. Plaintiffs and Hiller shall file supplemental memoranda and

evidence in support of the motions to dismiss within ten (10) days after the

close of this limited jurisdictional discovery period, and PEPCO shall have

ten (10) days in which to file a response.

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5. Plaintiffs’ Motion for a Scheduling Conference (doc. 60) is DENIED without

prejudice.

DONE AND ORDERED this 6th day of July, 2011.

M. Casey Rodgers

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE 

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