Owens-Corning Fiberglas Corp. v. Fiberboard Corp.

ROSALYN B. BELL, Judge. This appeal arises from the consolidated asbestos personal injury litigation pending in the Circuit Court for Baltimore City. The consolidation involves about 8,550 asbestos cases that were either filed in Baltimore City or transferred ³⁴⁷ from the various circuit courts in Maryland to Baltimore City pursuant to Rule 2-327. 1 Appellee, Fibreboard Corporation, was one of approximately 100 former manufacturers and distributors of products containing asbestos named as defendants in some of the cases. Appellants, Owens-Corning Fiberglas Corporation (Owens-Corning) and Keene Corporation (Keene), were also named as defendants in some of the cases.

The gravamen of the complaints filed is basically the same— that the complainants contracted asbestos-related illnesses as a result of their exposure to products containing asbestos manufactured or installed by the various defendants and that the defendants are liable in tort for those alleged injuries. All defendants were “deemed” by various court orders to have asserted cross-claims for contribution against all other defendants. Following two mistrials in 1991, the consolidated proceeding involving the defendants which were remaining in the case commenced with jury selection on February 18, 1992. After two weeks of voir dire, Fibreboard settled its dispute with the plaintiffs.

At that point, Fibreboard remained a party to the trial of the common issues because of the cross-claims for contribution asserted against it by the remaining defendants. At that time, the trial judge asked the defendants to advise him if they intended to pursue their cross-claims against Fibreboard. 2 Owens-Corning and Keene stated that they intended to pursue their cross-claims against Fibreboard. The next day, however, both moved for a voluntary dismissal without prejudice. After denying their motion, the judge told Owens-Corning and Keene that they needed to dismiss their claims with prejudice.

When Owens-Corning and Keene refused, the court sua sponte ³⁴⁸ dismissed their cross-claims and allowed Fibreboard to be dismissed from the case. The judgment was entered on May 4, 1992. Owens-Corning and Keene have appealed, contending: — “the circuit court erred in dismissing with prejudice the 8,550 claims for contribution where they offered to either dismiss the claims without prejudice or proceed to try them immediately”; — voluntary dismissal under Rule 2-506 requires the dismissal truly be voluntary by the party asserting the claim; — Rule 2-506(b) does not give the trial court discretionary power to dismiss a claim with prejudice; and — Fibreboard’s interpretation of Rule 2-506 violates Owens-Corriing’s and Keene’s rights to due process and trial by jury. Finding no error, we affirm and explain.

Since appellants’ last three contentions are really subparts of the first, we will deal with all of appellants’ contentions together. VOLUNTARY DISMISSAL PURSUANT TO RULE 2-506 According to appellants, “the issue presented here is whether the Maryland ‘Voluntary Dismissal’ rule, Rule 2-506, empowered the trial court to dismiss with prejudice, on its own initiative, their cross-claims for contribution against a co-defendant that settled for consideration the 8,550 cases that comprise the underlying consolidated action.” Appellants contend that the Rule does not give the trial court the discretion to dismiss involuntarily their cross-claims for contribution. They argue that such an interpretation would run afoul of Articles 20 and 23 of the Maryland Declaration of Rights and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Appellants argue that this is especially true in light of the fact that they had clearly expressed their intention to proceed with their cross-claims.

We disagree both with their factual predicate and their view of the trial court’s authority. ³⁴⁹ Rule 2-506, which governs voluntary dismissal, provides in its entirety: “(a) By Notice of Dismissal or Stipulation. — Except as otherwise provided in these rules or by statute, a plaintiff may dismiss an action without leave of court (1) by filing a notice of dismissal at any time before the adverse party files an answer or a motion for summary judgment or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action. “(b) By Order of Court. — Except as provided in section (a) of this Rule, a plaintiff may dismiss an action only by order of court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded prior to the filing of plaintiff’s motion for voluntary dismissal, the action shall not be dismissed over the objection of the party who pleaded the counterclaim unless the counterclaim can remain pending for independent adjudication by the court. “(c) Effect. — Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim. “(d) Costs. — Unless otherwise provided by stipulation or order of court, the dismissing party is responsible for all costs of the action or the part dismissed. “(e) Dismissal of Counterclaims, Cross-claims, or Third-party Claims. — The provisions of this Rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim, except that a notice of dismissal filed by a claimant pursuant to section (a) of this Rule shall be filed before the filing of an answer.” Sections (a) and (b) of the Rule are patterned after F.R.Civ.P. 41(a)(1) and 41(a)(2), respectively. Under Rule 41(a)(2) and Rule 2-506, the granting of a motion for voluntary dismissal is within the court’s discretion, after ³⁵⁰ weighing the equities and giving due regard to all pertinent factors. This discretion will not be overturned absent a showing of an abuse of that discretion.

See 5 Moore’s Federal Practice, If 41.05. A motion for voluntary dismissal may be granted with or without prejudice, a decision that is discretionary with the court. See 5 Moore’s Federal Practice, supra, ¶ 41.05[1]. This may be done, either on a motion or sua sponte, “to manage [the court’s] affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 , 82 S.Ct. 1386, 1389 , 8 L.Ed.2d 734 (1962).

Appellants argue that the trial judge improperly converted their voluntary motion to dismiss without prejudice into an involuntary motion to dismiss with prejudice. Even assuming arguendo that this “conversion” had taken place, such action would, as a matter of policy, be appropriate in the context of this case. Rule 2-506(b) plainly states that, absent a request to dismiss prior to the filing of an answer or summary judgment motion or a stipulation of the parties, “a plaintiff may dismiss an action only by order of court and upon such terms and conditions as the court deems proper.” Prior to the enactment of the present Rule, a plaintiff could unilaterally dismiss its action at any time prior to the introduction of evidence at trial. The old Rule was changed because it gave “the plaintiff control over the court’s trial docket and over the judge and jury before whom the case was to be tried.

If the plaintiff was dissatisfied with the appearance of the jury panel or with the judge to whom the case was assigned, he simply filed a notice of dismissal without prejudice. The lawsuit would be filed again shortly thereafter, commencing the case once again from the beginning. This obviously operated to the prejudice of the parties and the court.” P. Niemeyer and L. Schuett, Maryland Rules Commentary 351 (2nd ed.1992). ³⁵¹ In the instant case, the jury had been selected, pretrial and evidentiary rulings had been made, the plaintiffs and non-settling defendants had presented their opening statements, and the opening statements of cross-claim defendants Fibreboard and Owens-Illinois were about to begin. Owens-Corning and Keene had not made their opening statements at this point.

To allow Owens-Corning and Keene to dismiss their cross-claims against Fibreboard without prejudice at this point in the litigation would allow the type of delay, repetitious filing and forum shopping that Rule 2-506 seeks to remedy. It is impossible to understand the trial judge’s ruling, however, without placing the events in some type of chronological order. —March 9, 1992— On March 9, 1992, one of the defendants, Pittsburgh Corning, requested the release of the terms of a settlement that had been negotiated between Fibreboard and the plaintiffs. Since the settlement had not been reduced to writing, the judge deemed the request to be “premature.” The colloquy went as follows: “THE COURT: Let me continue with some of these other motions and then I will come back to the problem ones. “Pittsburgh Corning motion for production of settlement agreements and/or releases is denied. It is premature. “[COUNSEL FOR PITTSBURGH CORNING]: Your Honor, may I address the premature nature of your ruling or the nature of your ruling that it is premature? “THE COURT: Briefly.

Go ahead, sir. “[COUNSEL FOR PITTSBURGH CORNING]: Your Honor has asked us to state positions on the record with respect to our cross claims as to each other and as to those individuals who have settled their cases with plaintiffs. As to [Owens Illinois] and Fibreboard Corporation, for us to know what our options are and what our realistic and real options are with respect to how and ³⁵² under what circumstances we pursue those cross claims, we need the information we have requested in that motion. It is not premature as to now settled defendants. It is in fact ripe at this point in time and we would urge your Honor to reconsider within that parameter at this point. “THE COURT: Let me hear from— “[COUNSEL FOR OWENS-CORNING]: Your Honor, may I add to that?

At your request I consulted with my client with respect to waiving cross claims with respect to Fibreboard and [Owens Illinois]. I was unable to obtain authorization to do that and was instructed instead to urge this court to disclose the terms and amounts of those settlement agreements so that my client can make an intelligent decision as to whether to be satisfied with the pro tonto [sic] setoff in order to pursue whatever additional amount there will be on pro rata cross claim. We simply cannot make the intelligent decision at this time without the information Pittsburgh Corning is asking for at this time. “THE COURT: I understand. Let me hear from [Plaintiffs’ attorney] or whoever. “[COUNSEL FOR PLAINTIFFS]: Your Honor, as a practical point, the settlement agreements have been reduced to correspondence, but not agreements.

There are no documents to be produced and no releases that have been executed by anyone or have been provided. There are no releases in existence as it relates to [Owens Illinois] and Fibreboard. As to the Fibreboard agreement, it is an agreement between Mr. Snyder[ 3 ] and the plaintiffs, and we are in the process of reducing it to writing. It is based on some representations that Mr. Snyder and I have made personally. ³⁵³ “As to [Owens Illinois], there is a document that we are in the process of drafting up and finalizing on terms.

There are no settlement agreements as such that could be produced even if we wanted to. “THE COURT: [Counsel for Plaintiffs]. “[COUNSEL FOR PLAINTIFFS]: Thank you, your Honor. Furthermore, your Honor, as we indicated in our reply to the defendants’ request for this information and I believe your Honor has ruled previously, until such time as the defendants have been, one, found liable to the plaintiffs, to discharge payments by the common liability or pay more than their pro rata share and at such time as the other defendants or the nonpresent defendants, settling defendants have been found to be joint tort-feasors, they are not entitled to the information. “THE COURT: That is why I said premature, but they have asserted their ground which is that they need that in order to make an intelligent decision as to whether they are going to pursue cross claims. “I am maintaining my ruling at the present time. There is nothing to produce. “[COUNSEL FOR PITTSBURGH CORNING]: Your Honor, with respect to the dollar amounts, we still need to know the type or form of release which is encompassed in this settlement agreement. If plaintiffs want to submit under seal to court prior to the case going out for jury consideration the dollar amounts in each case, which I understand has been the practice in Maryland, that is understandable, and we would abide by what, as I understand, has been the traditional Maryland practice here. “THE COURT: How does that help you? “[COUNSEL FOR PITTSBURGH CORNING]: If I find out the nature of the release involved, your Honor, it tells me— “THE COURT: Oh, I know about the nature of the release, but— ³⁵⁴ “[COUNSEL FOR PITTSBURGH CORNING]: Yes, your Honor____ It keeps plaintiffs who may have an overall settlement agreement from doing anything after the fact of a jury verdict being returned to move money around so as to get an optimum advantage under a settlement. “Quite frankly, your Honor, I have been burned by that in other jurisdictions where there is a general settlement agreement and the plaintiffs weren't required to state to the Court in writing what the dollar amounts for each of the cases were until after the jury had come back, so that they could then later decide how to move money around best. “We would request the jury know or that the court have submitted under seal what the settlements amounts are in each case prior to the verdict being returned by the jury. “THE COURT: This court maintains — yes, sir.

If you have got a brand new point, I am listening. “[COUNSEL FOR OWENS-CORNING]: I believe it is new inasmuch as your Honor has indicated or ruled that there is nothing to produce. If there is nothing to produce, there is no settlement. I have heard nothing from plaintiffs or [Owens Illinois] that indicates that there has been a meeting of the minds or consummation of the claim, and it is my position and the position on behalf of my client that plaintiffs and Fibreboard and Owens Illinois have not settled, that Owens Illinois and Fibreboard are all defendants in this case and have to defend themselves until such time as there is a meeting of the minds and that there has been a settlement agreement reached. “THE COURT: Well, counsel, counsel for the plaintiffs and counsel for the respective defendants, [Owens Illinois] and Fibreboard, have both stood up and said there is an agreement. Now, the agreement may take the form of a bilateral writing back and forth of letters until there ³⁵⁵ is a binding agreement, so I am going to take it on faith.

If there is anything that shakes my faith, I will make them produce what they have, not for the benefit of the defendants necessarily, but to assure myself that there is an agreement. I do assume that there is an agreement. “I maintain my ruling.” The colloquy between the parties and the court then continued: “THE COURT: Okay. On an unrelated topic, I have reconsidered my decision with regard to Fibreboard’s motion to have the adjudication of the cross claim later on in the master cross claims trial and have concluded that it is up to the individual cross defendant, so if Fibreboard wants to have it later on,[ 4 ] that is fine with me, and if [Owens-Illinois] does not want to have it, then it is going to be adjudicated in the instant case, and I hope I will be faced with that decision many, many more times in the future. “[COUNSEL FOR OWENS-CORNING]: Your Honor, I rise only on the point of whether or not the dismissal of the cross claim of a co-defendant would be with prejudice at this time and suggest to the Court for the same reasons that the order you signed today would have resulted in dismissal without prejudice of those cross defendants who are dismissed by the other order that you signed if the notice procedure isn’t filed within the appropriate time that I would suggest that the purpose behind the ruling is to clear the Court’s dockets of claims until such time as the parties decide whether or not they really want to pursue them, it would be a more logical course to ³⁵⁶ have a dismissal without prejudice under those circumstances. “Certainly there is no question here that a cross plaintiff will be receiving any consideration for giving up the cross claim at this time. That is the only thing I suggest, your Honor. “[COUNSEL FOR FIBREBOARD]: Your Honor, in response to that, as I understand Maryland