ISC Holding AG v. Nobel Biocare Investments N.V.
759 F. Supp. 2d 294
S.D.N.Y.2010Background
- Petitioner ISC Holding initiated arbitration proceedings under the FAA by petition for an order directing arbitration on December 19, 2008.
- Respondent Nobel Biocare Investments moved to oppose the petition; the court denied on the merits finding no enforceable arbitration agreement.
- On appeal, the Second Circuit remanded for further proceedings after finding the arbitration clause ambiguous.
- Following remand, substantial discovery occurred, totaling over 2300 pages of documents and 1300 pages of deposition testimony across both sides.
- An evidentiary hearing was scheduled for October 25, 2010; petitioner filed a notice of voluntary dismissal on October 22, 2010, one business day before the hearing.
- The court treated the filing as potentially vacating the dismissal under Rule 60(b)(6) and vacated the Notice of Voluntary Dismissal to preserve respondent’s right to a full hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 41(a)(1) dismissal can terminate the action here | ISC contends 41(a)(1) dismissal allows dismissal without court order when no answer or summary judgment motion has been served. | Nobel contends Rule 41(a)(1) applies unless the case is at a point where dismissal would undermine the merits or an advanced stage. | Not dispositive; court vacates dismissal due to extreme circumstances |
| Whether vacating dismissal is proper under Rule 60(b)(6) given the extensive proceedings and late dismissal | ISC argues dismissal should stand as a voluntary, simple termination. | Nobel argues dismissal at this stage would deprive it of the hearing and merits adjudication already litigated. | Petitioner's dismissal vacated; hearing preserved and scheduled |
Key Cases Cited
- Harvey Aluminum Co. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.1953) (extreme facts can justify vacating a Rule 41(a)(1) dismissal to avoid arbitrary late-stage dismissals)
- Thorp v. Scarne, 599 F.2d 1169 (2d Cir.1979) (limits Harvey Aluminum; at times abandonment of literal Rule 41(a)(1) interpretation is warranted)
- Poparic v. Jugo Shop, 2010 WL 1260598 (E.D.N.Y. 2010) (illustrates concern for timing of dismissal before hearing)
- Productos Mercantiles E Industri ales, S.A. v. Faberge USA Inc., 23 F.3d 41 (2d Cir.1994) (treats petition to modify arbitration as motion; mechanics of arbitration under FAA)