Stoudemire et al v. Northport Health Services

Filing 12

ORDER: Before the court is the 5 Joint Stipulation of Dismissal filed by Plaintiffs Beverly Berry and Lessie Lott and Defendant Opp Health & Rehabilitation, LLC. The stipulation is construed as written notice that, pursuant to FRCP 15(a)(2), Plai ntiffs Berry and Lott have the opposing party's written consent to amend the complaint to dismiss their Title VII claims with prejudice. Upon consideration of the 5 Notice, it is ORDERED that the Title VII claims of Plaintiffs Beverly Berry an d Lessie Lott against Defendant Opp Health & Rehabilitation, LLC are DISMISSED with prejudice as further set out in the order. Further, it is ORDERED that, on or before 12/12/2016, Plaintiffs shall file an amended complaint that contains only the rem aining claims in theoriginal complaint, including the claims Plaintiffs Beverly Berry and Lessie Lott assert against Defendant Opp Health & Rehabilitation, LLC, pursuant to 42 U.S.C. 1981. The Clerk of the Court is DIRECTED to correct the name of Defendant Opp Health & Rehabilitation, LLC on the docket sheet. Signed by Chief Judge William Keith Watkins on 16cv756. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LACIE STOUDEMIRE, et al.,

Plaintiffs,
v.
OPP HEALTH &
REHABILITATION, LLC,
Defendant.

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) CASE NO. 2:16-CV-756-WKW
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ORDER

Before the court is the Joint Stipulation of Dismissal (Doc. # 5) filed by
Plaintiffs Beverly Berry and Lessie Lott and Defendant Opp Health &
Rehabilitation, LLC.1 The stipulation is construed as written notice that, pursuant to
Rule 15(a)(2) of the Federal Rules of Civil Procedure, Plaintiffs Berry and Lott have
the opposing party’s written consent to amend the complaint to dismiss their Title
VII claims with prejudice.2

1

In the Complaint (Doc. # 1), Defendant Opp Health & Rehabilitation was incorrectly
designated as “Northport Health Services, D/B/A Opp Health and Rehabilitation, LLC.”
2

Because Rule 41 speaks in terms of dismissal of “an action” but not individual claims,
“Rule 41 allows a plaintiff to dismiss all of his claims against a particular defendant; its text does
not permit plaintiffs to pick and choose, dismissing only particular claims within an action.” Klay
v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004). A more appropriate approach
is to proceed with an amendment pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
Cf. id. (noting that the proper way for “[a] plaintiff” to unilaterally drop fewer than all claims
against a defendant is to amend the complaint under Rule 15 of the Federal Rules of Civil

Upon consideration of the notice (Doc. # 5), it is ORDERED that the Title VII
claims of Plaintiffs Beverly Berry and Lessie Lott against Defendant Opp Health &
Rehabilitation, LLC, are DISMISSED with prejudice. See Fed. R. Civ. P. 15(a)(2)
(“[A] party may amend its pleading . . . with the opposing party’s written consent.”);
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1107 (11th Cir. 2004) (“Unless the
plaintiff’s motion or the district court’s order stipulates otherwise, a claim dropped
through a Rule 15 amendment—or, for that matter, an action dropped pursuant to
Rule 41(a)—is dismissed without prejudice.”).
Further, it is ORDERED that, on or before December 12, 2016, Plaintiffs
shall file an amended complaint that contains only the remaining claims in the
original complaint, including the claims Plaintiffs Beverly Berry and Lessie Lott
assert against Defendant Opp Health & Rehabilitation, LLC, pursuant to 42 U.S.C.
§ 1981.
The Clerk of the Court is DIRECTED to correct the name of Defendant Opp
Health & Rehabilitation, LLC on the docket sheet.
DONE this 30th day of November, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

Procedure); Campbell v. Altec Indus., Inc., 605 F.3d 839, 841 n.1 (11th Cir. 2010) (holding that,
after entry of summary judgment in favor of the defendant on two of three claims, “Rule 15 . . .
was the correct way to dismiss” the remaining claim with prejudice upon the plaintiff’s unilateral
request).
2