United States District Court, E.D. Kentucky, Central Division, Lexington
RED HED OIL, INC., doing business as REDI MART NO. 9, et al. Plaintiffs,
THE H.T. HACKNEY CO., et al., Defendants.
MEMORANDUM ORDER AND OPINION
M. HOOD SENIOR U.S. DISTRICT JUDGE
Red Head Oil, Inc. and Federated Mutual Insurance Company and
Defendant The H.T. Hackney Company move the Court for
voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii).
[DE 48]. The moving parties have notified the Court that a
settlement has been reached and move for dismissal of the
claims with prejudice. [Id.].
here, the moving parties have chosen the wrong procedural
vehicle to reach their desired destination. Under Sixth
Circuit law, Rule 41 permits a plaintiff to voluntarily
dismiss only the entire controversy, not a portion
of the claims. Philip Carey Mfg. Co. v.
Taylor, 286 F.2d 782, 785 (6th Cir. 1961). Additionally,
Rule 41(a)(1)(A)(ii) requires “a stipulation of
dismissal signed by all parties who have
appeared.” (emphasis added).
because the Court construes filings “by their
substantive content and not by their labels, ” this
Court will consider the current Motion under Rule 21. See
Coleman v. Ohio State Univ. Med. Ctr., No. 2:11-cv-0049,
2011 WL 3273531, at *3 (S.D. Ohio Aug. 1, 2011). For the
reasons stated herein, the moving parties' Motion, when
considered under Rule 21, is GRANTED.
Head and Federated brought this products liability lawsuit in
March 2017 in Madison Circuit Court against seven defendants.
[DE 1-1]. Defendant Logic Technology Development removed the
case to federal court in April 2017 based on diversity
jurisdiction pursuant to 28 U.S.C. §§ 1441 and
1332. [DE 1].
3, 2017, the matter was stayed as to Defendant NJoy, Inc. [DE
16] after NJoy filed a suggestion of Chapter 11 bankruptcy
[DE 13]. Subsequently, all claims against Defendants Swisher
International, Inc., Logic Technology Development LLC, Spark
Industries LLC, R.J. Reynolds Vapor Company, and Fontem
Ventures B.V. were dismissed. [DE 37]. Thus, H.T. Hackney and
NJoy became the only remaining defendants in this action.
current stipulation of dismissal is signed by counsel for Red
Head Oil, Federated Mutual Insurance, and H.T. Hackney, but
is not signed by counsel for NJoy. As a result, the current
stipulation of dismissal is not signed by all parties who
have appeared in the action.
as provided in Rule 41(a)(1), 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). Rule 41(a)(1) allows dismissal of actions without a
court order when a plaintiff files the notice of dismissal
either (1) before the opposing party serves an answer or
motion for summary judgment or (2) plaintiff presents a
dismissal signed by all parties who have appeared.
either Rule 41 method, a plaintiff may dismiss only an
“action.” In Philip Carey Manufacturing
Company v. Taylor, the Sixth Circuit interpreted
“action” to mean “entire
controversy.” 286 F.2d 782, 785. The Court held that
Rule 41 did not allow a court to dismiss claims against some,
but not all, defendants in a single case. Id.
this Court issued an opinion explaining the state of the law
regarding Rule 41(a) in the Sixth Circuit. United States
ex rel. Doe v. Preferred Care, Inc., 326 F.R.D. 462
(E.D. Ky. 2018). Ultimately, while some circuits disagree
with the Sixth Circuit's interpretation of Rule 41(a),
this Court is bound by Sixth Circuit precedent. See
Id. at 464; see, e.g., Van Leeuwen v. Bank
of Am., N.A., 304 F.R.D. 691, 693-94 (D. Utah 2015)
(discussing the circuit split and citing cases). Thus, the
moving parties here may not dismiss a single defendant under
moving parties may seek dismissal of a single defendant under
Rule 21. See Taylor, 286 F.2d at 785 (“we
think that [Rule 21] is the one under which any action to
eliminate” a single defendant should be taken); see
also Letherer v. Alger Grp., LLC, 328 F.3d 262, 266;
Wilkerson v. Brakebill, No. 3:15-CV-435-TAV-CCS,
2017 WL 401212 (E.D. Tenn. Jan. 30, 2017) (“Rule 21 is
the more appropriate rule”); Columbia Gas
Transmission, LLC v. Raven Co., Inc., No. 12-CV-72-ART,
2014 WL 12650688, at *1; Lester v. Wow Car Co.,
Ltd., No. 2:11-cv-850, 2012 WL 1758019, at *2, n.2 (S.D.
Ohio May 16, 2012) (“the Sixth Circuit has suggested
that dismissal of an individual party, as opposed to an
entire action, is properly conducted pursuant to Rule 21, not
Rule 41”). Warfel v. Chase Bank USA, N.A., No.
2:11-cv-699, 2012 WL 441135, at *2 (S.D. Ohio Feb. 10, 2012).
Thus, the Court construes the current Motion under Rule 21.
motion or on its own, the court may at any time, on just
terms, add or drop a party.” Fed.R.Civ.P. 21. The rule
applies where “no relief is demanded from one or more
of the parties joined as defendants.”
Letherer, 328 F.3d at 267. Under the rule, Courts
must consider prejudice to the nonmoving party. See
Wilkerson, 2017 WL 401212, at *2; Arnold v.
Heyns, No. 13-14137, 2015 WL 1131767, at *4 (E.D. Mich.
Mar. 11, 2015). The inquiry overlaps with Rule 41 standards
“as guidance in evaluating potential prejudice to the
non-movant.” Wilkerson, 2017 WL 401212, at *2.
Courts determine whether the nonmoving party would suffer
“plain legal prejudice” and consider: (1)
defendant's effort and expense of preparation for trial;
(2) excessive delay and lack of diligence on ...