United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
Plaintiffs Darrell Gipson and D & K Transport, Inc. and
Third-Party Defendant Great West Casualty Company, through
counsel, filed an Agreed Order of Dismissal [DE 64]
indicating that all claims against Third-Party Defendant
Great West Casualty Company may be dismissed with prejudice.
The claims against other Third-Party 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 Agreed Order of Dismissal [DE 64] as a
motion to dismiss under Rule 21. Accordingly, Third-Party
Plaintiffs' Agreed Order of Dismissal [DE 64], which the
Court construes as a Motion to Dismiss under Rule 21, is
GRANTED and the claims against Third-Party
Defendant Great West Casualty Company are DISMISSED
FACTUAL AND PROCEDURAL HISTORY
September 14, 2018, Plaintiff BMO Harris Bank N.A. filed a
Complaint against multiple Defendants, including Darrell
Gipson and D & K Transport, Inc. [DE 1]. On December 19,
2018, Third-Party Plaintiffs Darrell Gipson and D & K
Transport, Inc. filed a Third-Party Complaint against
multiple Third-Party Defendants, including Great West
Casualty Company. Also on December 19, 2018, the Court
entered a Scheduling Order. [DE 18]. However, on February 1,
2019, the Court placed this matter in abeyance and cancelled
all deadlines and proceedings in this matter, so Third-Party
Plaintiffs could establish service on all Third-Party
Defendants and receive insurance policy coverage(s) from
Third-Party Defendants. [DE 41]. Now, Third-Party Plaintiffs
and Great West Casualty Company seek to dismiss all claims
against Great West Casualty Company with prejudice. [DE 64].
As a result, this matter is ripe for review.
Third-Party Plaintiffs and Great West Casualty Company agree
to dismiss Great West Casualty Company from this action. 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
Agreed Order of Dismissal [DE 64] 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).
may be used for the dismissal of a single defendant. See
Taylor, 286 F.2d at 785 (“[W]e 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
Agreed Order of Dismissal [DE 64] 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). While the
Parties have agreed to dismiss, the Court considers the
relevant factors below.
while Great West Casualty Company has answered, it has likely
expended little time and few resources, if any, preparing for
trial in this matter. In fact, all deadlines and proceedings
in this case were cancelled, so there is no trial date
pending in this case. [DE 41]. As a result, the first factor
there is no indicia of any delay or lack of due diligence on
the part of the Third-Party Plaintiffs in this matter. It
appears that the Third-Party Plaintiffs are engaging in a
good faith attempt to resolve the dispute in a timely manner,
which supports dismissal.
neither Third-Party Plaintiffs nor Great West Casualty
Company have provided any explanation for the dismissal. As
such, this factor weighs against dismissal under Rule 21.
and finally, there is no pending motion for summary judgment
in this matter. Thus, the fourth ...