United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
matter is before the Court on the Parties' “Joint
Stipulation of Dismissal with Prejudice as to Defendant
Experian Information Solutions, Inc., ” [DE 40],
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii),
in the above-captioned matter. As this Court has repeatedly
held, dismissal of claims against individual parties in an
action is not appropriate under Rule 41(a). As such, this
Court construes the parties' joint stipulation as a
motion. For the reasons stated herein below, and the Court
being otherwise sufficiently advised, the parties' motion
[DE 40] is DENIED.
November 14, 2018, the Plaintiff, Angela Howard, filed this
action against six (6) defendants generally alleging
violations of the Fair Credit reporting Act, 15 U.S.C. §
1681 and/or the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et
seq. [DE 1]. Subsequently, on January 10, 2019, Howard
filed an amended complaint with leave of Court naming Credit
Plus as a Defendant. [DE 30].
February 14, 2019, the Court considered Plaintiff's
motion to dismiss all claims against Defendant Credit Plus,
Inc., with prejudice pursuant to Rule 41(a)(2), [DE 32], and
provided notice of voluntary dismissal pursuant to Rule
41(a)(10)(i) indicating that all claims against Defendant
Equifax Information Services may be dismissed with prejudice.
ruling on the motions to dismiss, the Court explained to the
parties that Rule 41(a) does not allow a court to dismiss
some, but not all, of the defendants in a single case. [DE
34]. See United States ex rel. Doe v. Preferred Care,
Inc., 326 F.R.D. 462 (E.D. Ky. 2018). Instead, the Court
explained that Rule 21 is the appropriate rule to dismiss a
single defendant. However, the Court construed the Defendants
filings as motions as properly filed motions to dismiss under
Rule 21. [DE 34 at 3-6, PageID #330-31].
the Plaintiff, through Counsel, has yet again filed a motion
to dismiss an individual party - in this instance Defendant
Experian Information Solutions, Inc. - under Rule
41(a)(1)(A)(ii). [DE 40].
the parties moved to dismiss using joint stipulations of
dismissal under Rule 41(a)(1)(A)(ii). Generally, Fed.R.Civ.P.
41(a)(1)(A)(ii) allows dismissal of an action without court
order through a joint stipulation of dismissal signed by all
parties who have appeared.
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). Here, the parties do not
seek dismissal of the entire action, but rather only one
defendant. [DE 40]. As the motion/joint stipulation would not
extinguish this action as to all defendants, granting the
parties motion to dismiss/stipulation under Rule 41 would be
prior Order, [DE 34], this Court made clear the appropriate
rule under which a party may dismiss a single defendant -
Rule 21. 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).
filing the subject motion, which seeks to dismiss a single
defendant, the parties have again failed to move under the
appropriate Federal Rule of Civil Procedure. This Court
disinclined to construe the joint stipulation/motion under
Rule 41 as a motion under Rule 21 because the parties are
unwilling or unable to comply with the Rules, in accordance
with this Court's prior Order. As a result, and the Court
being otherwise ...