I usually don't expect a fight about withdrawing a claim. Adding one? sure. Striking one? Also Sure. Squishing two of them together and pretending they're dancing? Definitely.
Generally though, the voluntary withdrawal of a claim makes life easier for the parties and the Court and passes from the case without comment or concern. That said, you can see why the withdrawal in MirTech, Inc. v. AgroFresh, Inc, C.A. No. 20-1170-RGA (D. Del. Mar. 23, 2023) (Mem. Op.) was more contentious.
The case had been pending for almost two years when Judge Andrews "encouraged the parties to avoid the over-litigation that [he] thought was happening in th[e] case." This "encouragement" took place about a week before the Defendant moved for SJ on several topics. plaintiff filed its opposition brief a month after that.
The defendant then took the unusual step of withdrawing one of the claims it had moved on—nominally without prejudice—via a letter. Plaintiff complained that it was too late for a unilateral dismissal via notice, and and Judge Andrews agreed, but with a twist:
AgroFresh's withdrawal of the claim during briefing for summary judgment was not stipulated to by the parties, nor was it timely. AgroFresh has not sought a court order to dismiss the counterclaim. Therefore, I read AgroFresh's letter to say that it is no longer requesting summary judgment on Counterclaim II.
Summary judgment on Counterclaim II is denied. I would sign a one-page motion to dismiss Counterclaim II (with or without the Mir Parties' consent) if it were presented to me.
Id. at 6-7
Unsurprisingly, the Defendant did file that one page motion. Equally unsurprising, Plaintiff opposed, requesting that any dismissal be with prejudice, or that Defendant be required to pay their fees in briefing the withdrawn claim.
Judge Andrews, however, maintained his position and granted the motion to withdraw the claim without prejudice, "reserv[ing] the right to take up attorneys' fees if there is a second litigation." MirTech, Inc. v. AgroFresh, Inc, C.A. No. 20-1170-RGA (D. Del. Apr. 26, 2023) (Mem. Order). In so holding, he noted that the narrowing had occurred at least partially in response to the Court's concerns:
I credit AgroFresh's motive to narrow the case as it sought to withdraw the claim in response to my concern of over-litigation in this case. (See D.I. 88; D.I. 96 at 7).
Id.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
