Sparta Insurance Company v. Poore et al

Filing 29

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/9/2014. (JLC)

FILED
2014 Apr-09 PM 04:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
SPARTA INSURANCE COMPANY, )
)
Plaintiff,
)
)
v.
) Case No.: 1:13-CV-1692-VEH
)
DANNY JOE POORE, et al,
)
)
Defendants.
)

MEMORANDUM OPINION
On April 2, 2014, in the context of ruling on a motion to dismiss, the court
noted that there appeared to no longer be a justiciable controversy regarding the
plaintiff’s claims against defendant Andrew Hunter. (Doc. 27). It ordered the
plaintiff to “SHOW CAUSE why its claim against this defendant should not . . . be
dismissed.” (Doc. 27 at 2). The plaintiff now responds that it “does not dispute that
there is no longer a justiciable controversy,” and “voluntarily dismisses its claims as
to Andrew Hunter with prejudice.” (Doc. 28 at 2). The plaintiff further stated that
it
voluntarily dismisses its claims as to its insured, Danny Joe Poore d/b/a
Economy Pest Control WITHOUT prejudice. SPARTA respectfully
requests that this dismissal be without prejudice, as coverage for
Defendant Poore was not adjudicated in this matter and may be an issue

in potential, future litigation.
(Doc. 28 at 2).
Because these defendants have answered (docs. 15, 16), dismissal must be
pursuant to Rule 41(a)(2), which provides, in pertinent part:
[A]n action may be dismissed at the plaintiff's request only by court
order, on terms that the court considers proper. If a defendant has
pleaded a counterclaim before being served with the plaintiff's motion
to dismiss, the action may be dismissed over the defendant's objection
only if the counterclaim can remain pending for independent
adjudication. Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(a)(2).
Hunter recently filed a motion to dismiss which this court denied without
prejudice pending the plaintiff’s response to the show case order. Hunter has not
filed a counterclaim. Because the plaintiff seeks Hunter’s dismissal with prejudice,
the court concludes that such a dismissal is proper under these circumstances.
Danny Joe Poore d/b/a Economy Pest Control is appearing pro se, and has
filed no counterclaim. Further no coverage issues concerning the policy in this case
have been adjudicated here. The plaintiff seeks this defendant’s dismissal without
prejudice. Under these circumstances, the court determines that dismissal of this
defendant without prejudice is proper.
The court will enter a separate order dismissing these defendants. As these are
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the only remaining defendants, the case will also be closed.
DONE and ORDERED this 9th day of April, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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