Marbury v. SL Alabama, LLC

Filing 8

ORDER construing 7 Stipulation of Dismissal as a motion for an order of dismissal; ORDER granting 7 Motion for an Order of Dismissal, and that Plf's claims against SL America are DISMISSED with prejudice, with each party to bear her or its own costs; ORDER denying as moot 6 Motion to Dismiss for Failure to State a Claim. Signed by Honorable Judge Mark E. Fuller on 4/3/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
KAYSHONE MARBURY,

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Plaintiff,
v.
SL AMERICA CORPORATION and
SL ALABAMA, LLC,
Defendants.

CASE NO. 3:13-cv-118-MEF
(WO – Do Not Publish)

ORDER
Before the Court is a Stipulation of Dismissal (Doc. #7), filed by Plaintiff and Defendant
SL America Corporation (“SL America”). The stipulation is construed as a motion for an order
of dismissal, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.1
Upon consideration of the motion (Doc. #7), it is ORDERED that the motion is
GRANTED, and that Plaintiff’s claims against SL America are DISMISSED with prejudice,
with each party to bear her or its own costs.
It is further ORDERED that defendant’s Motion to Dismiss for Failure to State a claim
(Doc. #6) is DENIED as moot.
rd

DONE this the 3 day of April, 2013.

1

A request to dismiss an action requires a court order and dismissal by terms the court considers
“proper” if Rule 41(a)(1) does not apply. Fed. R. Civ. P. 41(a)(2). Rule 41(a)(1)(A) allows for dismissal
without a court order: (i) before an opposing party serves either an answer or a motion for summary
judgment; or (ii) if the joint stipulation of dismissal is signed by all of the parties who have appeared.
Defendant SL Alabama, LLC had already filed an answer in this case, but it did not sign the stipulation of
dismissal. See Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (“Unless a defendant has filed an
answer or summary judgment motion, the governing provision is rule 41(a)(1).”) (emphasis added).
Dismissal, thus, must be by motion. Fed. R. Civ. P. 41(a)(2).

/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE