United States District Court, N.D. Mississippi, Aberdeen Division
16 FRONT STREET LLC and C. RICHARD COTTON PLAINTIFFS
MISSISSIPPI SILICON, LLC, and GARY C. RIKARD, Executive Director, Mississippi Department of Environmental Quality, in his Official Capacity and as Executive Director of the Mississippi Environmental Quality Permit Board DEFENDANTS
ORDER OF DISMISSAL
M. BROWN UNITED STATES DISTRICT JUDGE
the Court in this Clean Air Act action is the parties'
“Joint Motion to Dismiss without Prejudice.” Doc.
relevance to this order,  on September 29, 2014, 16 Front Street
LLC and C. Richard Cotton filed their original complaint
against Mississippi Silicon (“MS Silicon”),
alleging federal question jurisdiction under 42 U.S.C. §
7604(a)(3) of the Clean Air Act (“CAA”). Doc. #1
at ¶ 6. The plaintiffs alleged that MS Silicon was
constructing a new major emitting facility, a silicon
manufacturing plant, without a permit in violation of the CAA
and Mississippi state regulations. Id. at
¶¶ 65-68. The plaintiffs claimed that deficiencies
in the permitting process of the Mississippi Department of
Environmental Quality (“MDEQ”) violated
procedural requirements regarding public participation
imposed by the CAA and its implementing regulations and that
MS Silicon's ongoing construction of the plant deviated
from the materials MS Silicon submitted to MDEQ in its permit
application. Id. at ¶¶ 25-60, 66-67.
January 23, 2015, the plaintiffs filed an amended complaint
pursuant to Rule 15(a)(1)(B), adding as a defendant Gary
Rikard, in his official capacity as Executive Director of
MDEQ and its Permit Board. Doc. #69. The amended complaint
contained essentially the same allegations against MS Silicon
as the original complaint and added a claim that MDEQ, in the
process of granting MS Silicon's permit application,
violated the CAA. Id. at ¶¶ 79-86.
30, 2015, this Court dismissed for lack of subject matter
jurisdiction the claims against MS Silicon. Doc. #111.
Approximately five months later, the Court dismissed the
claims against Rikard on the ground that “[b]ecause
this Court lacked jurisdiction at the time the original
complaint was filed, the time-of-filing rule compels the
conclusion that this Court lacks jurisdiction over the
amended complaint.” Doc. #123. The plaintiffs appealed
both orders. Doc. #124. On March 30, 2018, the Fifth Circuit
affirmed the dismissal of MS Silicon but reversed the
dismissal of Rikard and remanded for further proceedings.
16 Front Street, L.L.C. v. Miss. Silicon, L.L.C.,
886 F.3d 549, 561 (5th Cir. 2018).
remand, the parties, referring to ongoing settlement
discussions, sought and received three separate stays.
See Docs. #148, #151, #154. Finally, on November 30,
2018, the plaintiffs filed a “Joint Motion to Dismiss
without Prejudice, ” Doc. #155, and an accompanying
memorandum, Doc. #156. Rikard filed a “Notice of
Endorsement” for both the motion and the memorandum.
Doc. #157; Doc. #158.
parties' joint motion asks that the Court dismiss the
proceedings without prejudice and also enter an agreed order
of dismissal. Doc. #155. As grounds for the requested relief,
the parties represent that “MS Silicon has applied for
a major modification of its … permit such that there
is a new opportunity for public participation in connection
with the requested modification.” Doc. #156 at 3.
under circumstances not at issue here, “an action may
be dismissed at the plaintiff's request only by court
order, on terms that the court considers proper.”
Fed.R.Civ.P. 41(a)(2). The Court believes that the terms of
dismissal here-dismissal without prejudice to allow the
plaintiffs to challenge MS Silicon's new permit
application-are proper under the circumstances. However, the
Court declines to enter the proposed agreed order of
dismissal, which includes unnecessary verbiage and numerous
recitations which have no discernible legal effect.
the joint motion to dismiss  is GRANTED in Part
and DENIED in Part. The motion is GRANTED to the
extent it seeks dismissal of this action without prejudice.
The motion is DENIED to the extent it asks the Court to enter
the parties' proposed agreed order. This action is
DISMISSED without prejudice. The Clerk of
the Court is directed to close this case.