United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
Jack Strunk and Defendant Liberty Insurance Corporation,
acting through counsel, have filed a joint stipulation of
dismissal with prejudice of all claims asserted against
Liberty. [DE 9]. But here, because dismissal of claims
against a single party is not appropriate under Federal Rule
of Civil Procedure 41, the Court construes the stipulation of
dismissal as a motion to drop a single party under Rule 21.
Still, it is unclear what impact this dismissal will have on
the case since dismissal of Liberty will result in only two
unknown defendants remaining in this action. Accordingly, the
parties' joint stipulation of dismissal is construed as a
motion to drop a party under Rule 21 and is
GRANTED. All claims against Defendant
Liberty are DISMISSED WITH PREJUDICE and the
Strunk shall file a status report concerning the claims
remaining against the unknown defendants.
April 25, 2018, this action was removed to this Court from
Garrard Circuit Court based on diversity jurisdiction. [DE
1]. Pursuant to the Court's scheduling order, all
discovery was to be completed by February 15, 2019. [DE 6].
Dispositive motions are due from the parties no later than
March 15, 2019, and this matter is scheduled for trial on May
28, 2019. [Id.].
February 14, 2019, Strunk and Liberty filed an agreed order
or joint stipulation of dismissal, informing the Court that
all claims that Strunk asserted against Liberty were
dismissed with prejudice. [DE 9]. The joint stipulation makes
no mention of the claims asserted against the unknown
defendants in the action. Currently, the matter is ripe for
Applicable Law and Analysis A. Dismissal of a Liberty Under
while no explicit rule is cited by the parties, it appears
that the parties move for voluntary dismissal without court
order under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
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 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
stipulation of dismissal as a motion to drop 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 the joint
stipulation of dismissal [DE 9] as a motion to drop 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).
so, Liberty has agreed to the dismissal of all claims with
prejudice, eliminating concern that Liberty may suffer plain
legal prejudice as a result of the dismissal. Additionally,
dismissal of this action with prejudice will prevent the
Plaintiff from bringing these claims against Liberty in the
future, providing finality for Liberty. As such, dismissal of
Liberty pursuant to Rule 21 is appropriate.
Effect of Dismissal
Liberty is dismissed as a Defendant in this action, only two
“Unknown Defendants” will remain in the lawsuit.
It is unclear if Strunk intends to proceed with this lawsuit
against the two Unknown Defendants.
hand, if Strunk does not intend to continue the lawsuit
against the Unknown Defendants, it appears that Strunk may
dismiss the remaining claims without a court order pursuant
to Rule 41(a)(1)(A)(i) by providing notice of dismissal,