United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE
February 21, 2019, the Court ordered the Plaintiff Edward
Hirst to show cause why Defendant Verizon Wireless Services,
LLC, should not be dismissed for failure to effectuate
service in compliance with Federal Rule of Civil Procedure
4(m). [DE 18]. Hirst, through counsel, filed a response and
filed a notice of voluntary dismissal as to Verizon only
pursuant to Federal Rule 41(a)(1)(A). [DE 19; DE 20]. But
dismissal of a single party under Rule 41(a) is improper.
Still, since Hirst has failed to prove that Verizon was
properly served within ninety days pursuant to Federal Rule
of Civil Procedure 4(m), the claims against Verizon Wireless
are DISMISSED WITHOUT 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,
committed defamation, and 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].
January 11, 2019, Hirst and Trans Union filed a joint
stipulation of dismissal of all claims against Trans Union.
[DE 14]. The Court noted that a dismissal of a single party
under Rule 41(a) is improper but construed the joint
stipulation as a motion to drop a party under Rule 21 and
dismissed the claims against Trans Union with prejudice. [DE
on February 6, 2019, Hirst filed a notice of voluntary
dismissal as to the claims against Defendant Equifax
Information Services. [DE 16]. The Court again reminded Hirst
that dismissal of a single party under Rule 41(a) is improper
but construed the voluntary dismissal as a motion to drop a
single party under Rule 21 and dismissed all claims against
Defendant Equifax with prejudice. [DE 17].
the Court noted that it was unclear if Defendant Verizon
Wireless had been properly served. As a result, the Court
ordered Hirst to show cause why Verizon should not be
dismissed for failure to effectuate service within the time
frame outlined in Federal Rule of Civil Procedure 4(m). [DE
Hirst has responded to the order to show cause and filed
another voluntary dismissal of a single party under Rule
41(a). [DE 19; DE 20]. At present, all Defendants, except for
Verizon Wireless Services, LLC, have either answered or have
been dropped from this action. This matter is ripe for
Ineffective Dismissal of a Single Party Under Rule
Court has stated twice already and again reminds the
Plaintiff, Rule 41(a) does not allow dismissal of some, but
not all, of the defendants in a 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).
the Court does not make much fuss about the technical meaning
of the word “action” in Rule 41(a) and simply
construes motions to dismiss less than an entire case under
Rule 41(a) as motions to drop a party or claim under Rule 21.
But here, the Court has notified counsel for the Plaintiff on
two separate occasions that voluntary dismissal of a single
party is improper under Rule 41(a). Yet, counsel continues to
file notices of dismissal under Rule 41(a) to drop a single
instance, the Court refuses to construe Hirst's notice of
voluntary dismissal of Verizon as a motion to drop a party
under Rule 21. As a result, Hirst's notice of voluntary
dismissal [DE 19] is ineffective. In the future, motions to
drop a single party or claim that do not resolve the entire
action must be properly made under Rule 21.
Dismissal for Failure to Demonstrate Proof ...