United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Edward Hirst has filed notice of voluntary dismissal in this
matter, indicating that the claims against Defendant Equifax
Information Services, LLC, are dismissed with prejudice. [DE
16]. The claims against other Defendants will remain. Here,
because dismissal of a single party is not appropriate under
Federal Rule of Civil Procedure 41, the Court construes the
notice of dismissal as a motion to dismiss under Rule 21.
Accordingly, Hirst's notice of dismissal [DE 16], which
the Court construes as a motion to dismiss under Rule 21, is
GRANTED and the claims against Defendant
Equifax are DISMISSED WITH PREJUDICE.
October 25, 2018, Edward Hirst filed a verified complaint in
the United States District Court for the Western District of
Kentucky alleging that the Defendants were negligent, had
committed defamation, and had violated provisions of the Fair
Credit Reporting Act (“FCRA”). [DE 1]. But the
transactions and occurrences giving rise to the action
occurred in Scott County, Kentucky, which is in the Eastern
District of Kentucky, so the matter was transferred to this
Court on October 26, 2018. [DE 4].
Hirst and Trans Union stipulated that all issues between them
had been settled and the Court dismissed the claims as to
Trans Union with prejudice. [DE 14, Stipulation of Dismissal;
DE 15, Memorandum Opinion and Order].
Plaintiff Hirst has filed a notice of voluntary dismissal of
the claim against Defendant Equifax. [DE 16]. Defendant
Equifax has not appeared in this action or filed an answer to
the complaint. This matter is ripe for review.
Applicable Law and Analysis
Equifax moves for voluntary dismissal pursuant to Federal
Rule of Civil Procedure 41(a)(1)(A). Rule 41(a)(1)(A)(i)
states that “the plaintiff may dismiss an action
without a court order by filing: (i) a notice of dismissal
before the opposing party serves either an answer or a motion
for summary judgment.” But, as this Court explained in
its previous memorandum order and opinion [DE 15], and again
reiterates, Rule 41(a) does not allow a court to dismiss
some, but not all, of the defendants in a single case.
See United States ex rel. Doe v. Preferred Care,
Inc., 326 F.R.D. 462 (E.D. Ky. 2018). In the Sixth
Circuit, a plaintiff may only dismiss an “action”
using Rule 41(a) and an “action” is interpreted
to mean the “entire controversy.” Philip
Carey Manufacturing Company v. Taylor, 286 F.2d 782, 785
(6th Cir. 1961). While some Circuits disagree with the Sixth
Circuit's interpretation of Rule 41(a), this Court is
bound by Sixth Circuit precedent. See Preferred
Care, 326 F.R.D. 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).
this does not end the analysis, because the Court construes
filings “by their substantive content and not by their
labels, ” and, as such, this Court will consider the
voluntary notice of dismissal as a motion to dismiss a party
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). Rule 21 may be used for the dismissal of
a single defendant. 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 (6th Cir. 2003), overruled on other grounds
by Blackburn v. Oaktree Capital Mgmt., LLC, 511 F.3d
633, 636 (6th Cir. 2008); 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”);
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
Hirst's notice of voluntary dismissal [DE 16] as a motion
to dismiss a single party 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. Normally, 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 plaintiff's
part in prosecuting the case; (3) insufficient explanation
for the need for dismissal; and (4) whether a motion for
summary judgment is pending.” Grover v. Eli Lily
& Co., 33 F.3d 716, 718 (6th Cir. 1994). The Court
considers the relevant factors below.
seeing as Defendant Equifax has not answered or otherwise
appeared to defend in this civil action, it does not appear
that Equifax has expended any effort or expense in
preparation for trial.
there is no indication of excessive delay or lack of due
diligence on the part of the Plaintiff in prosecuting this
case. The Plaintiff has already resolved this matter with one
of the original Defendants, Trans Union, and now seeks to
resolve the matter as to another Defendant, Equifax. This
case was filed in November 2018 and Plaintiff appears to be
working diligently to resolve this matter is an expeditious
the Plaintiff has not provided any justification for the need
for dismissal. The lack of explanation weighs against
dismissal of this action. Still, Defendant Equifax has not
appeared in this action and appears to have expended no
expense in litigating this action. Furthermore, dismissal
with prejudice will ensure that this ...