Vision Bank v. 145, LLC et al

Filing 160

Order re: 158 Stipulation of Dismissal filed by Vision Bank, 157 Stipulation of Dismissal filed by Vision Bank. Objections due by 8/29/2011. If no objections filed, plaintiff's claims against defendants Dalton and Lukinovich shall be dismissed with prejudice without further order of the Court. Signed by Judge Kristi K. DuBose on 8/18/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VISION BANK, ,
Plaintiff,
vs.
145, LLC, et al.,
Defendants.

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CIVIL ACTION NO. 10-0521-KD-B

ORDER
This action is before the Court on the joint stipulation for dismissal with prejudice of
defendant James Dalton (doc. 157) and the joint stipulation for dismissal with prejudice of
defendant David Lukinovich (doc. 158). The stipulations for dismissal with prejudice are signed
by plaintiff Vision Bank and by defendants Dalton and Lukinovich.
Dalton and Lukinovich filed their answers (docs. 17, 27). Therefore, the stipulation
appears to be made pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure,
which states, in relevant part, that a plaintiff may voluntary dismiss an action Awithout a court
order by filing . . . a stipulation of dismissal signed by all parties who have appeared.@ However,
all parties to the action did not sign the stipulation. In that regard, the Court of Appeals for the
Eleventh Circuit has explained that where all parties do not agree to the stipulation, a voluntary
dismissal by stipulation is not applicable. See Negron v. City of Miami Beach, Florida,113 F.3d
1563, 1571 (11th Cir. 1997) (A”[T]here is no indication in the record that anyone besides Diaz
agreed to the motion. The rule is clearly stated: a voluntary dismissal by stipulation is applicable
only if all the parties sign off on it. Diaz was not entitled to a voluntary dismissal by
stipulation.”)

Thus since all parties, specifically the other defendants, did not sign the stipulation, the
stipulation for dismissal may be addressed as a request for voluntary dismissal by the plaintiff
made under Fed. R. Civ. P. 41(a)(2). Under that Rule, the Court may dismiss an action, or in this
case, the cause of action against two defendants, “at the plaintiff’s request only by court order,
on terms that the court considers proper.”
Accordingly, the remaining defendants shall file any objection to the dismissal of Dalton
and Lukinovich from this action within ten (10) days of the date of this order. If no objection
is filed, then plaintiff=s claims against defendants Dalton and Lukinovich shall be DISMISSED
with prejudice without further order of the Court.
Nothing herein shall be construed as dismissing plaintiff Vision Bank’s claims against the
remaining defendants.
DONE and ORDERED this 18th day of August, 2011.

s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE