United States District Court, D. South Carolina, Columbia Division
City of Warren Police and Fire Retirement System, individually and on behalf of all others similarly situated, Plaintiff,
SCANA Corporation; Dominion Energy, Inc.; Sedona Corp.; Jimmy E. Addision; Gregory E. Aliff; James A. Bennett; John F.A.V. Cecil; Sharon A. Decker; D. Maybank Hagood; Lynne M. Miller; James W. Roquemore; Macco K. Sloan; and Alfredo Trujillo, Defendants.
ORDER AND OPINION
MARGARET B. SEYMOUR SENIOR UNITED STATES DISTRICT JUDGE
Corporation (“SCANA”) and the South Carolina
Public Service Authority (“Santee Cooper”)
entered into an agreement with Westinghouse Electric Company
(“Westinghouse”) in 2008 to construct two nuclear
reactors at the V.C. Summer Nuclear Generating Station in
Jenkinsville, South Carolina. The project was abandoned in
July 2017. On January 3, 2018, Dominion Energy, Inc.
(“Dominion”) and SCANA entered into a merger
agreement by which SCANA would become a wholly-owned
subsidiary of Dominion through a merger with Sedona Corp.
(“Sedona”), an existing wholly-owned subsidiary
of Dominion. Under the agreement SCANA stockholders would
receive 0.6690 shares of Dominion stock in exchange for each
outstanding share of SCANA common stock.
January 23, 2018, Plaintiff City of Warren Police and Fire
Retirement System filed a stockholder class action complaint
in the Court of Common Pleas for the County of Lexington,
South Carolina, against SCANA; members of the Board of
Directors and the Chief Executive Officer (the
“Individual Defendants”); and Dominion and
Sedona. Plaintiff alleged causes of action against Individual
Defendants for breach of fiduciary duties by executing a
merger agreement with Dominion and Sedona without regard to
the effect of the proposed acquisition on SCANA's
stockholders, i.e., failing to take steps to maximize the
value to be received by stockholders, failing to properly
value SCANA, and ignoring or not protecting “against
the numerous conflicts of interest of senior management and
the Board.” Plaintiff further alleged that SCANA,
Dominion, and Sedona aided and abetted Individual Defendants
in breaching their fiduciary duties of loyalty, due care,
independence, good faith, fair dealing, and candor.
February 21, 2018, Dominion and Sedona removed the action
pursuant to the Class Action Fairness Act, 28 U.S.C.
§§ 1332(d) and 1453. On March 14, 2018, Plaintiff
filed a motion to remand. Plaintiff asserted that the
complaint was not subject to removal under 28 U.S.C. §
1332(d)(9), which provides:
(9) Paragraph (2) shall not apply to any class action that
solely involves a claim--
(A) concerning a covered security as defined under 16(f)(3)1
of the Securities Act of 1933 (15 U.S.C. 78p(f)(3)(2) and
section 28(f)(5)(E) of the Securities Exchange Act of 1934
(15 U.S.C. 78bb(f)(5)(E));
(B) that relates to the internal affairs or governance of a
corporation or other form of business enterprise and that
arises under or by virtue of the laws of the State in which
such corporation or business enterprise is incorporated or
(C) that relates to the rights, duties (including fiduciary
duties), and obligations relating to or created by or
pursuant to any security (as defined under section 2(a)(1) of
the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the
regulations issued thereunder).
27, 2018, the court granted Plaintiff's motion to remand,
concluding that Plaintiff's causes of action
“concern” or “relate to” the
exception set forth in §§ 1332(d)(9)(C). On August
2, 2018, Dominion and Sedona informed the court that the
Court of Appeals for the Fourth Circuit had granted
permission to appeal the order remanding the case and had
issued a briefing schedule. Dominion and Sedona moved the
court to stay the remand order pending appeal. The court
granted the motion on October 23, 2018. On February 6, 2019,
Plaintiff filed a notice of voluntary dismissal without
prejudice as to Dominion and Sedona. See Fed.R.Civ.P.
41(a)(1)(A)(i) (providing that a plaintiff may dismiss an
action without a court order by filing a notice of dismissal
before the opposing party serves either an answer or a motion
for summary judgment). On June 28, 2019, the Fourth Circuit
reversed the court's ruling remanding the within action.
The Fourth Circuit issued its mandate on July 23, 2019.
matter is now before the court on Dominion and Sedona's
motion to vacate Plaintiff's notice of voluntary
dismissal, which motion was filed on February 13, 2019.
Plaintiff filed a response in opposition on February 27,
2019, to which Dominion and Sedona filed a reply on March 6,
Dismissal Under Rule 41
voluntary dismissal under Rule 41(a)(1)(A)(i)
“‘is available as a matter of unconditional right
and is self-executing, i.e., it is effective at the moment
the notice is filed with the clerk and no judicial approval
is required.'” In re Matthews, 395 F.2d
477, 480, 481 (4th Cir. 2005) (quoting Marex
Titanic, Inc. v. The Wrecked & Abandoned Vessel, 2
F.3d 544, 546 (4th Cir.1993)). The court is without authority
to vacate Plaintiff's notice of voluntary dismissal. See,
e.g., Marex Titanic, Inc. v. Wrecked & Abandoned
Vessel,2 F.3d 544 (4th Cir. 1993)(holding
district court was without authority to vacate a notice of
dismissal on the grounds that the plaintiff had been
“dissembling, if not downright ...