First City Bank of Florida v. McKelvy et al (JOINT ASSIGN)

Filing 120

ORDER: Before the court is the Joint Motion for Dismissal with Prejudice filed by Plaintiff First City Bank of Florida and Defendants BancorpSouth Bank ("BancorpSouth") and Johnny Kincey. (Doc. # 119 .) The motion is construed as a noti ce of dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure.1 Because the notice comports with Rule 41(a)(1)(A)(i), Plaintiff's claims against BancorpSouth and Mr. Kincey have been dismissed with prejudice by operatio n of Rule 41(a)(1) on the terms set out in the notice. The Clerk of the Court is DIRECTED to reflect in the courts electronic record that BancorpSouth Bank and Johnny Kincey have been terminated as Defendants in this action. It is further ORDERED that the pending motions filed by BancorpSouth and Mr. Kincey (Docs. # 61 , 63 , 109 ) are DENIED as moot. Signed by Chief Judge William Keith Watkins on 12/5/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
FIRST CITY BANK OF FLORIDA,
Plaintiff.
v.
WILLIAM R. McKELVY, et al.,
Defendants.

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CASE NO. 2:17-CV-41-WKW
[WO]

ORDER
Before the court is the Joint Motion for Dismissal with Prejudice filed by
Plaintiff First City Bank of Florida and Defendants BancorpSouth Bank
(“BancorpSouth”) and Johnny Kincey. (Doc. # 119.) The motion is construed as a
notice of dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil
Procedure.1 Because the notice comports with Rule 41(a)(1)(A)(i), Plaintiff’s claims

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The parties filed a joint stipulation presumably pursuant to Rule 41(a)(1)(A)(ii). Rule
41(a)(1)(A)(ii) is not applicable because all the parties who have appeared in this action have not
signed the stipulation of dismissal. See Fed. R. Civ. P. 41(a)(1)(A)(ii). However, Rule
41(a)(1)(A)(i) allows for a plaintiff to dismiss an action without a court order by filing a notice of
dismissal before an opposing party serves either an answer or a motion for summary judgment.
Fed. R. Civ. P. 41(a)(1)(A)(i). “Such a notice may be filed against one defendant without
dismissing the entire action.” Sears & Roebuck & Co. v. Hardin Constr. Grp., Inc., No. CV 1600272-KD-B, 2016 WL 9343175, at *1 (S.D. Ala. Oct. 3, 2016) (citing Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (“Rule 41 allows a plaintiff to dismiss all
of his claims against a particular defendant.”)). Here, neither Defendant above has filed an answer
or a motion for summary judgment; hence, the notice of dismissal complies with Rule
41(a)(1)(A)(i).

against BancorpSouth and Mr. Kincey have been dismissed with prejudice by
operation of Rule 41(a)(1) on the terms set out in the notice.
The Clerk of the Court is DIRECTED to reflect in the court’s electronic record
that BancorpSouth Bank and Johnny Kincey have been terminated as Defendants in
this action.
It is further ORDERED that the pending motions filed by BancorpSouth and
Mr. Kincey (Docs. # 61, 63, 109) are DENIED as moot.
DONE this 5th day of December, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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