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 Eagle
Financial Services, Inc., ” [DE 38], pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
August 23, 2018, the Plaintiff, Celeste Curd, filed this
action against six (6) defendants generally alleging
violations of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 and/or the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692, et seq. [DE 1]. Now, the parties
have filed a joint stipulation of dismissal of an individual
party - Eagle Financial Services, Inc. - under Rule
41(a)(1)(A)(ii). [DE 38]. The Court construes the
parties' joint stipulation as a motion to dismiss.
Court has held, dismissal of claims against individual
parties in an action is not appropriate under Rule 41(a).
See e.g., Howard v. 21st Century Mortgage
Corporation, No. 5:18-cv-00613, 2019 WL 2163602, at *2
(E.D. Ky. May 17, 2019) (stating “...this Court made
clear the appropriate rule under which a party may dismiss a
single defendant - Rule 21”). For the reasons stated
herein below, and the Court being otherwise sufficiently
advised, the parties' motion [DE 38] is
parties moved to dismiss using joint stipulations of
dismissal under Rule 41(a)(1)(A)(ii). Generally, Rule
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. United States ex rel. Doe v. Preferred Care,
Inc., 326 F.R.D. 462 (E.D. Ky. 2018); 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 dismissal of only
one defendant. [DE 38]. 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
courts in in this Circuit have abundantly clear the that Rule
21 is appropriate rule under which a party may dismiss 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). In filing the subject motion, the
parties have failed to move under the appropriate Rule.
for Plaintiff, James Hays Lawson and James R. McKenzie, have
also incorrectly moved for dismissal of a single party
pursuant to Rule 41 in other cases. See Shockley v.
Portfolio Recovery Associates, LLC, No. 5:18-cv-00010,
at Docket Entry 7 (E.D. Ky. February 8, 2018) (filing motion
to dismiss a single party under Rule 41(a)(2); Howard v.
21st Century Mortgage Corporation, No. 5:18-cv-00613, at
Docket Entry 25 (E.D. Ky. Jan. 21, 2019) (filing notice of
voluntary dismissal). In other instances, they have joined in
such motions filed by opposing counsel. See Gross v. GLA
Collection Co., Inc., et al., No. 5:18-cv-00519, at
Docket Entry 24 (E.D. Ky. February 13, 2019); Gross,
No. 5:18-cv-00519, at Docket Entry 26 (E.D. Ky. February 25,
Court has repeatedly informed Mr. McKenzie and Mr. Lawson
that such motions are to be made pursuant to Rule 21.
Shockley, No. 5:18-cv-00010, at Docket Entry 8 (E.D.
Ky. February 13, 2018); Howard, No. 5:18-cv-00613,
2019 WL 638365, at *1-2 (E.D. Ky. Feb. 14, 2019);
Gross, No. 5:18-cv-00519, at Docket Entry 27 (E.D.
Ky. Feb. 25, 2019). Nonetheless, this Court construed the
parties' Rule 41 motions as motions correctly filed under
Rule 21 and granted them. Id. It should be noted
that, in each such instance, the Court was forced to undergo
the tedious exercise of explaining why it was construing Rule
41 motions as Rule 21 motions. Id. In any event, by
now Mr. McKenzie and Mr. Lawson knew or should have known the
appropriate procedure to dismiss a single party.
on May 15, 2019, Mr. McKenzie and Mr. Lawson were involved in
the incorrect filing of yet another joint motion/stipulation
of dismissal under Rule 41. Howard, No.
5:18-cv-00613, Docket Entry 40 (E.D. Ky. May 15, 2019). This
Court had enough and denied the motion. Howard, No.
5:18-cv-00613, 2019 WL 2163602, *1-2 (E.D. Ky. May 17, 2019).
As a result, Mr. McKenzie and Mr. Lawson were made readily
aware that this Court will no longer tolerate continued
disregard for the Rules or its orders.
they then correctly filed a joint motion to dismiss a single
party under the appropriate rule, Howard, No.
5:18-cv-00613, Docket Entry 42 (E.D. Ky. May 20, 2019)
(moving to dismiss a party under Rule 21). The next day the
Court granted their joint motion. Howard, No.
5:18-cv-00613, Docket Entry 43 (E.D. Ky. May 21, 2019).
further note that, only two days later, Mr. McKenzie was
again able to correctly file a joint motion to drop a single
party under Rule 21 in a separate case. Gross, No.
5:18-cv-00519, Docket Entry 31 (E.D. Ky. May 22, 2019). The
Court granted the motion. Gross, No. 5:18-cv-00519,
Docket Entry 32 (E.D. Ky. May 22, 2019). Thus, counsel has
shown they are, indeed, capable of following both the Federal
Rules of Civil Procedure and this Court's orders.
on July 16, 2019, Mr. McKenzie and Mr. Lawson were involved
in the filing of the joint stipulation of dismissal currently
before the Court. [DE 38]. Again, they move under Rule 41
rather than Rule 21. [Id.]. Mr. McKenzie and Mr.
Lawson know better. The Court will not continue to engage in
the fruitless and time-consuming exercise of explaining the
appropriate procedure to counsel ad nauseum only to
be ignored. Accordingly, we caution counsel that any ...