UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

J.F.L. Enterprises and

Holdings, LLC, et al.

v. Civil No. 04-314-JD

Town of New Boston, et al.

O R D E R

The plaintiffs, five individuals and two real estate

development companies, bring claims against the town of New

Boston, New Hampshire, and twelve individuals who are or have

been active in town government. The plaintiffs contend that the

defendants have treated them unfairly in their efforts to develop

property in New Boston and have given preferential treatment to

others, in particular, to the Dodge family. They allege that the

defendants violated their rights to free speech and free

association, to petition the government, to procedural due

process, and to equal protection actionable under 42 U.S.C. §

1983; that the individual defendants engaged in racketeering

activities in violation of the Racketeer Influenced and Corrupt

Organizations Act, and that the defendants conspired to commit

fraud and committed other state law torts. 

The plaintiffs now move pursuant to Federal Rule of Civil

Procedure 41(a)(2) to dismiss their suit without prejudice. In

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support of their motion, the plaintiffs assert that relatively

little substantive progress has been made in the case and that

their former counsel “suddenly, unexpectedly and inexplicably

gave notice of [his] withdrawal” leaving them unable to continue

the case. The defendants object to dismissal without prejudice,

move to dismiss the case with prejudice pursuant to Federal Rule

of Civil Procedure 41(b), and seek an award of costs and fees

incurred in defending this suit. The plaintiffs object to

dismissal with prejudice and to the defendants’ request for an

award of costs and fees.

The plaintiffs also move to strike the defendants’ objection

to their motion to dismiss on the ground that the defendants

failed to submit affidavits to support their factual assertions

in violation of Local Rule 7.1(a)(2). That motion is denied. To

the extent the defendants’ objection includes unsupported factual

statements, those matters will not be considered by the court.

Discussion

Pursuant to Rule 41(a)(2), the court may dismiss the

plaintiffs’ action without prejudice, at their request, “upon

such terms and conditions as the court deems proper.” In

deciding an opposed motion under Rule 41(a)(2), the court

considers “the defendant’s effort and expense of preparation for

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trial, excessive delay and lack of diligence on the part of the

plaintiff in prosecuting the action, insufficient explanation for

the need to take a dismissal, and the fact that a motion for

summary judgment has been filed by the defendant.” In re

Urohealth Sys., Inc., 252 F.3d 504, 505 (1st Cir. 2001) (quoting

Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969) with

additional quotation marks omitted). Rule 41(b) provides for

involuntary dismissal, with prejudice, as a sanction for the

plaintiffs’ failure to prosecute their claims or failure to

comply with the federal rules or a court order.

The circumstances of this case do not warrant sanctions

under Rule 41(b). Nevertheless, the progress of this case

cautions against an unconditional dismissal without prejudice. 

The plaintiffs filed suit over a year ago. The plaintiffs then

sought injunctive relief, requiring a response from the

defendants, and filed an amended complaint, requiring the

defendants to file an answer to that complaint. The court

directed the plaintiffs to address standing and jurisdictional

issues raised by the defendants in opposition to their motion for

injunctive relief. In their response, the plaintiffs changed

course and directed their request for relief toward discovery. 

Their motion for injunctive relief was denied due to their

failure to show that they had standing and that the court had

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jurisdiction to grant the relief they sought outside of the

discovery procedures provided in the federal rules.

The plaintiffs appealed the court’s denial of their request

for injunctive relief. The pretrial conference scheduled for

January 25, 2005, was continued and reset to April 12, 2005. On

February 28, 2005, the First Circuit Court of Appeals dismissed

the appeal in response to the plaintiffs’ motion for a voluntary

dismissal. No explanation has been provided for that action.

On March 1, 2005, the plaintiffs’ counsel filed a notice of

their withdrawal, and the court notified the plaintiffs that they

were required to file appearances on their behalf, or pro se

appearances for the individual plaintiffs, by March 23, 2005, or

the action would be dismissed. On March 23, 2005, the

plaintiffs’ counsel who had previously withdrawn filed an

appearance on behalf of all of the plaintiffs except Louis

Maynard. Because Maynard failed to comply with the court’s order

to file an appearance, his claims were dismissed on March 29,

2005. The remaining plaintiffs’ counsel filed a notice of

withdrawal on May 26, 2005, and the plaintiffs were again

notified that they were required to file appearances, with a

deadline of June 20, 2005. 

On June 20, 2005, the plaintiffs’ current counsel filed a

notice of appearance that did not comply with the electronic

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filing requirements. Because the plaintiffs missed the filing

deadline for an appearance of counsel, the court dismissed the

action. The order dismissing the case was vacated on June 29,

2005, after counsel’s notice of appearance was properly filed. 

The pretrial conference was scheduled for August 3, 2005. On

August 1, 2005, the plaintiffs filed the present motion to

voluntarily dismiss their claims without prejudice.

The purpose of Rule 42(a)(2) “is to permit the plaintiff,

with approval of the court, voluntarily to dismiss an action as

long as no other party will be prejudiced.” Doe v. Urohealth

Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000) (internal citation

and quotation marks omitted). The history of this case shows

that it has remained pending with little progress for more than a

year. The delay is directly attributable to the plaintiffs. 

The plaintiffs explain that they are forced to dismiss their

action because their former counsel’s withdrawal has “unduly

prejudiced [their] ability to obtain a fair trial.” That

explanation is not persuasive in light of the affidavit of Joseph

Foistner, who is one of the plaintiffs, stating that the

plaintiffs have spent four years on an investigation that has

yielded 3,000 documents, sworn and videographed witness

statements, and significant work product from the plaintiffs’

original counsel in support of their claims. Instead it appears

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that the plaintiffs are not willing to spend additional money to

retain counsel or to fund further litigation. 

The defendants represent that they have expended

considerable time and money in responding to the plaintiffs’

complaint, motion for injunctive relief, and appeal. Although

the defendants have not filed a dispositive motion in this case

and formal discovery has apparently not begun, based on the

docket it appears that the defendants’ counsel had to spend time

in responding to the plaintiffs’ pleadings and motions. The

defendants contend that they would be prejudiced if the

plaintiffs’ claims were dismissed without prejudice. They also

seek an award of costs and fees incurred to date in this

litigation.

Given the obvious prejudice to the defendants, it would be

inappropriate to dismiss the case without prejudice unless the

plaintiffs reimbursed the defendants for their costs and fees. 

On the other hand, if the case were dismissed with prejudice, the

defendants would have a final adjudication on the merits without

the possibility of further litigation. Therefore, the case will

be dismissed without prejudice subject to the condition that the

plaintiffs reimburse the defendants for their reasonable

attorneys’ fees and costs incurred in this litigation within

forty-five days of the date of this order. If the plaintiffs

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fail to comply with that condition, the case will be dismissed

with prejudice.

Conclusion

For the foregoing reasons, the plaintiffs’ motion to strike

(document no. 63) is denied. The defendants’ motion to dismiss

(document no. 61) is granted as to an award of attorneys’ fees

and costs and is otherwise denied. The plaintiffs’ motion to

dismiss (document no 57) is granted in part as to a dismissal

without prejudice that is, however, it shall be subject to the

condition of such dismissal that the plaintiffs reimburse the

defendants for their reasonable attorneys’ fees and costs

incurred in this litigation within forty-five days of the date of

this order, failing which the case will be dismissed with

prejudice.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

September 8, 2005

cc: Charles P. Bauer, Esquire

Gordon R. Blakeney, Jr., Esquire

Stephen A. Duggan, Esquire

John Paul Kacavas, Esquire

David L. Nixon, Esquire

R. Peter Taylor, Esquire

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