Glasow v. E.I. Dupont De Nemours and Company

20040321 Bruce Glasow, on behalf of himself
and all others similarly situated, Plaintiff and Appellant
v.
E.I. DuPont de Nemours and Company;
Pioneer Hi-Bred International; and
Monsanto Company, Defendants and Appellees
--------------------
Robert Finken, Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Lawrence A. Leclerc
Nature of Action: Contracts
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellee: Zuger Kirmis & Smith
Appellee: Lawyer not licensed in N.D.
Appellee: Lawyer not licensed in N.D.
Appellee: Lawyer not licensed in N.D.
Appellee: Nilles, Plambeck, Selbo & Harrie, Ltd.
Appellee: Lawyer not licensed in N.D.
Appellee: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellant: Sarah M. Vogel
Term: 03/2005   Argument: 03/29/2005  1:30pm
ND cite: 2005 ND 94
NW cite: 696 N.W.2d 531

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether the District Court erred in denying Plaintiff's motion to withdraw as a named plaintiff from the case based on the conclusion that his mere intent to withdraw terminated the action.
2. Whether, in light of the manifest error of its legal conclusion that the case had been terminated, the District Court abused its discretion in denying proposed intervenor Finken's motion for intervention and to amend the caption.

Appellee's Statement of the Issues:
This appeal presents two threshold issues regarding Mr. Glasow's standing:
1. Whether a plaintiff who requested an order "permitting [him] to withdraw, without prejudice, as a party plaintiff" has standing to appeal a judgment dismissing his claims without prejudice.
2. Whether a plaintiff who has withdrawn from a case has standing to appeal a district court's denial of a third party's motion to intervene, which the plaintiff did not join.
If the Court finds that Mr. Glasow has standing, this appeal presents two additional questions:
1.Whether a district court abuses its discretion in treating a motion to "withdraw" from a lawsuit by the only plaintiff as a notice of voluntary dismissal.
2. Whether a district court abuses its discretion in denying permissive intervention on the grounds that the plaintiff's withdrawal left no case in which to intervene, or alternatively, that the intervenor could not have any "common question of law or fact" with a plaintiff who had abandoned all his claims.

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Docket entries:
111/16/2004 NOTICE OF APPEAL: 11/15/2004
211/16/2004 Certificate of No Transcript
312/03/2004 AFFIDAVIT OF JAMES DENVIR PURSUANT TO NDROC 11.1(e)
412/03/2004 ACTION BY CLERK (James Denvir authorized to appear). Granted
512/03/2004 AFFIDAVIT OF SCOTT GANT PURSUANT TO NDROC 11.1(e)
612/03/2004 ACTION BY CLERK (Scott Gant authorized to appear). Granted
712/23/2004 RECORD ON APPEAL
812/27/2004 APPELLANT BRIEF
912/27/2004 APPELLANT APPENDIX
1012/27/2004 MOTION FOR PERMISSION FOR STEPHEN A. WEISS TO APPEAR & AFFIDAVIT IN SUPPORT
1112/27/2004 ACTION BY CLERK (STEPHEN A. WEISS TO APPEAR). Granted
1212/27/2004 MOTION FOR PERMISSION FOR JAMES A. O'BRIEN III TO APPEAR & AFFIDAVIT IN SUPPORT
1312/27/2004 ACTION BY CLERK (JAMES A. O'BRIEN III TO APPEAR). Granted
1412/27/2004 MOTION FOR PERMISSION FOR DAVID A.P. BROWER TO APPEAR & AFFIDAVIT IN SUPPORT
1512/27/2004 ACTION BY CLERK (DAVID A.P. BROWER TO APPEAR). Granted
1612/27/2004 UPDATED AFFIDAVIT OF SCOTT J. FARRELL IN SUPPORT OF RULE 11.1 MOTION
1712/27/2004 ACTION BY CLERK (SCOTT J. FARRELL TO APPEAR). Granted
1812/27/2004 UPDATED AFFIDAVIT OF DANIEL W. KRASNER IN SUPPORT OF RULE 11.1 MOTION
1912/27/2004 ACTION BY CLERK (DANIEL W. KRASNER TO APPEAR). Granted
2012/27/2004 UPDATED AFFIDAVIT OF ADAM J. LEVITT IN SUPPORT OF RULE 11.1 MOTION
2112/27/2004 ACTION BY CLERK (ADAM J. LEVITT TO APPEAR). Granted
2212/28/2004 DISK - atb (e-mailed)
2312/28/2004 Plaintiff-Appellant's Motion to Stay Proceedings. RspDue: 01/10/2005
2401/05/2005 Response in Opposition to Motion to Stay Proceedings
2501/05/2005 MOTION to Dismiss Mr. Finken's Appeal. RspDue: 01/18/2005
2601/10/2005 JOINT MOTION OF ROBERT N. WEINER, JUDITH BERNSTEIN-GAETA, & ANTHONY J. RANZE REQUESTING PERMISSION
2701/10/2005 TO APPEAR under Rule 11.1(e), N.D.R.C. and Affidavits of Anthony J. Franze, Judith Bernstein-Gaeta,
2801/10/2005 & Robert N. Weiner in Support of the Joint Motion
2901/10/2005 ACTION BY CHIEF DEPUTY CLERK (Anthony J. Franze, Judith Bernstein-Gaeta, & Robert Weiner to appear). Granted
3001/18/2005 Mr. Finken's Response to Motion to Dimiss
3101/18/2005 Notice of Change of Address & phone number for Plaintiff's/Appellant's Counsel
3201/20/2005 ACTION BY SUPREME COURT (Mot/Stay). Denied
3301/20/2005 ACTION BY SUPREME COURT (Mot/Dismiss Mr. Finken's appeal). Denied
3401/31/2005 APPELLEE BRIEF
3501/31/2005 E-FILED BRIEF (AEB)
3602/03/2005 Copies made of e-filed AEB
3702/03/2005 Payment of $25 fee for filing electronic AEB (Receipt #160870)
3802/14/2005 REPLY BRIEF of Appellants
3902/14/2005 DISK - RYB
4002/22/2005 Notice of Change of Law Firm Address from Adam Levitt (faxed)
4102/28/2005 Notice of Change of Law Firm Address from Adam J. Levitt (same as faxed notice filed 2-22-05)
4203/29/2005 Letter from Stephen W. Plambeck dated 3-28-05 with attached cites from Westlaw
4303/29/2005 APPEARANCES: Adam Levitt and Sarah M. Vogel; Anthony J. Franze and Stephen W. Plambeck;
4403/29/2005 Scott E. Gant and Lawrence E. King
4503/29/2005 ARGUED: Levitt; Franze; Gant (Vol. Z; Page 99)
4603/29/2005 ORAL ARGUMENT WEBCAST
4704/01/2005 Letter from Adam Levitt dated 3-31-05 w/attached Memorandum Order issued by US Dist. Ct of Missouri
4804/08/2005 Letter from Mr. Farrell's office re: e-mail addresses for Mr. Krasner & Mr. Farrell
4905/17/2005 DISPOSITION: REVERSED AND REMANDED
5005/17/2005 UNANIMOUS OPINION: VandeWalle, Gerald W.
5105/17/2005 Costs on appeal taxed in favor of Appellants
5205/19/2005 Judgment Mailed to Parties
5306/10/2005 MANDATE
5406/15/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
5512/29/2011 EXPUNGED - Nonpermanent record items destroyed

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