United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
Angela Howard, through counsel, filed a motion to dismiss all
claims against Defendant Credit Plus, Inc., with prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(2) in this
matter. [DE 32]. Additionally, Howard provided notice of
voluntary dismissal pursuant to Rule 41(a)(1)(A)(i)
indicating that all claims against Defendant Equifax
Information Services may be dismissed with prejudice. [DE
25]. The claims against other Defendants will remain.
because dismissal of claims against a single party is not
appropriate under Federal Rule of Civil Procedure 41, the
Court construes the notice of dismissal and motion to dismiss
under Rule 41 as motions to dismiss under Rule 21.
Accordingly, Howard's motions to dismiss with prejudice
under Rule 41 [DE 25; DE 32], which the Court construes as
motions to dismiss under Rule 21, are
GRANTED and the claims against Defendants
Equifax Information Services, LLC, and Credit Plus, Inc., are
DISMISSED WITH PREJUDICE.
November 14, 2018, the Plaintiff filed a complaint against
multiple Defendants, including Equifax. [DE 1]. Subsequently,
on January 10, 2019, Howard filed an amended complaint with
leave of Court naming Credit Plus as a Defendant. [DE 30].
Neither Equifax nor Credit Plus have answered or otherwise
appeared in this matter.
Howard seeks to dismiss all claims against Equifax and Credit
Plus with prejudice pursuant to Rule 41(a). [DE 25; DE 32].
As a result, this matter is ripe for review.
Applicable Law and Analysis
Howard moves for dismissal two Defendants pursuant to Federal
Rule of Civil Procedure 41(a). But, as this Court has
previously explained, 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
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 and motion to dismiss under
Rule 41(a) as motions 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,
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 Howard's notice of voluntary
dismissal [DE 25] and motion to dismiss under Rule 41(a) [DE
32] as motions 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 neither Equifax nor Credit Plus have answered in
this matter, they have likely expended little time and few
resources, if any, preparing for trial in this matter. In
fact, no scheduling order has been entered in this matter so
there is no trial date pending in this case. As a result, the
first factor supports dismissal.
there is no indicia of any delay or lack of due diligence on
the part of the Plaintiff in this matter. It appears that the
Plaintiff is engaging in a good faith attempt to resolve the
dispute in a timely manner, which supports dismissal.
Plaintiff Howard has not provided any explanation for the
dismissal. As such, this factor weighs ...