Simone, Jr. v. Monaco et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Simone, Jr.,
Plaintiff
v. 	Case No. 20-cv-336-SM
Opinion No. 2022 DNH 027
Andrew Monaco, et al.,
Defendants
O R D E R
The events giving rise to this litigation have been
recounted, in detail, in the court’s prior orders. 	It is
sufficient to note that in May of 2016, the plaintiff, Richard
Simone, Jr., led law enforcement officers from several state and
local jurisdictions on a lengthy, multi-state, motor-vehicle
chase. 	That pursuit eventually ended when Simone drove down a
dead-end street and was no longer able to evade the police.
Following a brief physical struggle with several officers, he
was arrested and taken into custody. 	In this proceeding, Simone
seeks compensation for injuries sustained as a result of
physical force used against him by two officers – force that
Simone says was excessive.
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Simone originally named sixteen defendants, including many
of the officers who were involved in the pursuit and/or present
for his arrest. 	He also sued the State of New Hampshire, the
Commonwealth of Massachusetts, the City of Nashua, and the Town
of Holden. 	Nearly all defendants have either been dismissed or
settled with Simone. 	What remain are Simone’s claims against
the two officers who physically subdued him: New Hampshire State
Police Trooper Andrew Monaco and Massachusetts State Trooper
Joseph Flynn.
Simone recently settled his claims against Trooper Monaco
and moves the court to dismiss, with prejudice, all of those
claims and causes of action. 	See Fed. R. Civ. P. 41(a)(2).
Trooper Flynn objects. 	For the reasons discussed, Simone’s
motion is granted.
Discussion
Rule 41 of the Federal Rules of Civil Procedure governs a
plaintiff’s ability to voluntarily dismiss a federal suit.
Under the circumstances presented here, it provides that:
an action may be dismissed at the plaintiff’s request
only by court order, on terms that the court considers
proper. 	If a defendant has pleaded a counterclaim
before being served with the plaintiff’s motion to
dismiss, the action may be dismissed over the
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defendant’s objection only if the counterclaim can
remain pending for independent adjudication.
Fed. R. Civ. P. 41(a)(2). 	Flynn has not pleaded a counterclaim
against the plaintiff, so that is not an issue (nor has he
advanced any cross claims against Monaco).
Flynn’s opposition to Simone’s proposed stipulation of
dismissal rests upon vague assertions of “unfair prejudice” to
his anticipated trial defense, which he says will attempt to
attribute all of plaintiff’s injuries to Trooper Monaco. 	See
Opposition Memorandum (document no. 180) at 2 (“Dismissal of
Monaco from this case would prejudice Flynn’s defense that
Monaco was the sole cause of any injuries to Plaintiff and
therefore solely responsible for payment of any damages that may
be awarded. 	Moreover, Defendant Flynn does not want the
dismissal to serve as a bar for his claims and defenses pursuant
to DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793
(2006); RSA 507:7-e et. seq., or undermine the jury instructions
to which he is entitled in his defense.”).1
1 	In DeBenedetto, the New Hampshire Supreme Court held that,
pursuant to N.H. Rev. Stat. Ann. (“RSA”) 507:7-e, a jury may
apportion damages among all entities that contributed to the
plaintiff’s injuries, including parties that have settled with
the plaintiff as well as tortfeasors not named in the
plaintiff’s complaint (including those who may be immune from
liability). 	153 N.H. at 804. 	See also State v. Exxon Mobil
Corp., 168 N.H. 211, 259-60 (2015).
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To successfully thwart Simone’s efforts to dismiss his
claims against Monaco, Flynn bears the burden of establishing
that he would suffer some form of “plain legal prejudice.”
Cason v. Puerto Rico Elec. Power Auth., 770 F.3d 971, 976 (1st
Cir. 2014). 	He has failed to do so.
While Flynn’s arguments are weak and largely undeveloped,
they are not novel. 	Similar arguments were presented to – and
rejected by – this court in Michnovez v. Blair, LLC, No. 10-CV-
110-LM, 2011 WL 3665412 (D.N.H. Aug. 22, 2011). 	In Michnovez,
the plaintiffs settled their claims against all but one
defendant. 	Plaintiffs then moved to dismiss all claims against
those defendants with prejudice. 	The lone non-settling
defendant objected. 	In resolving that motion, the court first
noted that, “Blair [the objecting, non-settling defendant] fails
utterly to develop [its] legal argument. 	Because it is not the
obligation of the court to research and construct the legal
arguments open to parties, especially when they are represented
by counsel, a district court is free to disregard arguments that
are not adequately developed.” 	Id., at *2 (citations and
internal punctuation omitted).
Nevertheless, the court recognized that it was still
obligated to independently exercise its discretion under Rule
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41(a)(2) and determine whether dismissal of the settling
defendants would unfairly or improperly prejudice the non-
settling defendant. 	In concluding that dismissal was proper,
the court reasoned as follows:
Blair has filed no cross claims against any of the
[settling] defendants, which severely undercuts
Blair’s claim that it will be prejudiced by dismissal
of those defendants. 	Moreover, the [settling]
defendants argue, persuasively, that Blair will still
have an opportunity at trial to apportion fault to
other entities whether they are parties to the case or
not, see DeBenedetto v. CLD Consulting Eng’rs, Inc.,
153 N.H. 793, 803 (2006), and that the absence of the
[settling] entities from this case will not foreclose
subsequent indemnification claims. . . . In sum, given
Blair’s failure to make any kind of legal argument,
and the persuasive arguments advanced by [the settling
defendants], the court can see no good reason for
granting the [settling] defendants any less relief
than plaintiffs are willing to offer them.
Michnovez v. Blair, LLC, 2011 WL 3665412, at *2 (some citations
and internal punctuation omitted).
So it is in this case. 	Trooper Flynn has not developed his
argument in opposition to the plaintiff’s motion, nor has he
shown how Monaco’s dismissal might “serve as a bar for his
claims and defenses pursuant to DeBenedetto.” 	Opposition
Memorandum at 2. 	In short, Flynn has not identified any reason
to believe that he will be meaningfully prejudiced by the
dismissal of Trooper Monaco from the case. 	Trooper Monaco, on
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the other hand, points out that he would be unduly and unfairly
prejudiced if, despite having resolved all of plaintiff’s claims
against him, the court required him to remain in the case and
forced him to incur ongoing legal expenses.
Conclusion
In light of the foregoing, and for the reasons set forth in
defendant Andrew Monaco’s reply memorandum (document no. 181),
the court concludes that Trooper Flynn has not shown that the
dismissal of Simone’s claims against Trooper Monaco will result
in any legal prejudice to him. 	The terms under which plaintiff
has proposed to dismiss those claims are proper. 	See Fed. R.
Civ. P. 41(a)(2). 	Accordingly, plaintiff’s “Motion to Accept
Stipulation of Dismissal” (document no. 177) is granted and all
claims and causes of action against defendant Andrew Monaco are
dismissed with prejudice.
Finally, the court notes that on November 19, 2021, counsel
notified the court that Simone had resolved all of his claims
against officers of the Holden Police Department. 	Simone now
moves, without objection, to dismiss his claims against those
defendants. 	That motion (document no. 178) is also granted and
all claims and causes of action against defendants Jonathan
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Santimore, Jonathan Bourget, and David Armstrong are dismissed
with prejudice.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
March 9, 2022
cc: 	All Counsel of Record
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