United States District Court, E.D. Kentucky, Central Division, Lexington
JEFFREY M. STAPLETON, et al., Plaintiffs,
SEVILLA VICENTE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
Jeffrey and Beatrice Stapleton, through counsel, filed a
Notice of Voluntary Dismissal pursuant to Rule 41 indicating
that all claims against Defendant TQL, Inc.
(“TQL”) may be dismissed because TQL has not
filed an answer, and “[a]ll Defendants agree TQL, Inc.
was not the broker to the subject transaction as was
previously represented to the Plaintiffs.” [DE 42]. The
claims against all 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 under Rule 41 as a
motion to dismiss under Rule 21. Accordingly, Plaintiffs'
Notice of Voluntary Dismissal under Rule 41 [DE 42], which
the Court construes as a Motions to Dismiss under Rule 21,
will be GRANTED, and the claims against
Defendant TQL will be DISMISSED WITHOUT
Plaintiffs notify the Court of their voluntary dismissal of
TQL 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 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
Voluntary Notice of Dismissal [DE 42] 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 Plaintiffs' Notice of Voluntary
Dismissal [DE 42] as a motion to dismiss a single party under
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 TQL has not answered, it has likely expended little
time and few resources, if any, preparing for trial in this
matter. 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 Plaintiffs in this matter. It appears that
Plaintiffs are engaging in a good faith attempt to resolve
the dispute in a timely manner, which supports dismissal.
Plaintiffs have provided an explanation for the dismissal.
Specifically, Plaintiffs assert, “All Defendants agree
TQL, Inc. was not the broker to the subject transaction as
was previously represented to the Plaintiffs.” [DE 42,
at 1]. As such, this factor weighs in favor of dismissal
under Rule 21.
and finally, there is no pending motion for summary judgment
in this matter. Thus, the fourth factor weighs in favor of
all four of the relevant factors to be considered before
dismissal under Rule 21 weigh in favor of dismissal of the
claims against TQL. Accordingly, IT IS
ORDERED as follows:
Court construes Plaintiffs' Notice of Voluntary Dismissal
[DE 42] as to Defendant TQL, Inc. as a motion to dismiss