Whitney Bank v. Point Clear Development Company, LLC et al

Filing 44

Order dismissing without prejudice the defendant Anthony Kaiser in accordance with the 42 Notice of Voluntary Dismissal. (Anthony P. Kaiser terminated as defendant). The 38 Suggestion of Bankruptcy, construed as a motion to stay is moot. Response to 34 Motion for Summary Judgment is due by 5/18/2012, Replies due by 6/1/2012. Signed by Chief Judge William H. Steele on 5/8/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

WHITNEY BANK,
Plaintiff,
v.
POINT CLEAR DEVELOPMENT,
LLC, et al.,
Defendants.

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CIVIL ACTION 11-0657-WS-M

ORDER
This matter comes before the Court on Plaintiff’s Notice of Voluntary Dismissal (doc.
42). The Notice reflects that plaintiff, Whitney Bank, wishes to dismiss without prejudice its
claims against Anthony Kaiser, who is one of six named defendants herein.
Back on January 12, 2012, a Clerk’s Entry of Default (doc. 23) was entered against
defendant Anthony Kaiser in this matter pursuant to Rule 55(a), Fed.R.Civ.P., based on his
failure to answer, plead, appear, or otherwise defend after being served with process.1 No
default judgment has been entered against this defendant, pending adjudication of plaintiff’s
claims against the remaining five defendants. Despite his defaulted status, Anthony Kaiser has
proven to be something of a distraction in this case. Indeed, on April 12, 2012, defendants
Thomas W. Mitchell and Thomas E. Mitchell filed a “Suggestion of Bankruptcy and Stay of
Proceedings” (doc. 38), which the Court has construed as a motion for stay, based solely on
Anthony Kaiser’s filing of a Chapter 7 voluntary petition for relief in U.S. Bankruptcy Court for
the Southern District of Alabama on April 9, 2012. Court-ordered briefing on that Motion to
Stay ensued, and has concluded, such that the Motion is ripe for disposition.

1

Plaintiff’s Application for Entry of Default (doc. 20) included a showing that
Anthony Kaiser was personally served with copies of the summons and complaint on December
15, 2011, but never appeared or defended against Whitney’s claims.

Plaintiff now seeks to eliminate the distraction by filing a Notice of Voluntary Dismissal
of its claims against Anthony Kaiser without prejudice. Pursuant to Rule 41(a)(1)(A)(i),
Fed.R.Civ.P., a plaintiff may dismiss an action without order of the court “by filing a notice of
dismissal before the opposing party serves either an answer or a motion for summary judgment
….” Id. The court file reflects that defendant Anthony Kaiser has filed neither an answer nor a
motion for summary judgment; therefore, plaintiff is entitled to dismiss its claims against him
unilaterally, and without court action.2 Accordingly, by the terms of the Notice of Voluntary
Dismissal and Rule 41(a), all claims brought in this action against defendant Anthony Kaiser are
dismissed without prejudice, each party to bear his or its own costs. The Clerk of Court is
directed to terminate Anthony Kaiser as a party defendant.
The voluntary dismissal of plaintiff’s claims against Anthony Kaiser dictates the outcome
of the Mitchell defendants’ construed Motion to Stay (doc. 38). After all, movants’ sole asserted
basis for the Motion to Stay was that Anthony Kaiser had filed a Chapter 7 petition, triggering
application of the automatic stay under 11 U.S.C. § 362(a)(1). The voluntary dismissal of
plaintiff’s claims against Anthony Kaiser obviates any need for a stay, inasmuch as all remaining
and pending aspects of this action are plainly outside the ambit of the automatic stay in
bankruptcy. Stated differently, there being no remaining defendants as to whom bankruptcy
proceedings are ongoing, there can be no application of the automatic stay to those claims.
Accordingly, the Motion to Stay is moot.
In light of these developments, it is proper to restore the previously-suspended briefing
schedule as to plaintiff’s Motion for Summary Judgment (doc. 34). (Earlier today, plaintiff
2

The fact that other defendants have filed responsive pleadings and defended
against plaintiff’s claims poses no impediment to application of Rule 41(a)(1)(A)(i) to defendant
Anthony Kaiser. See, e.g., Barber v. BP, PLC, 2010 WL 3270229, *1 n.2 (S.D. Ala. Aug. 16,
2010) (“The application of Rule 41(a)(1)(A)(i) is proper here as to defendant Mitsui, irrespective
of whether any other defendants have or have not filed answers or motions for summary
judgment.”); Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993) (“We agree … that Rule
41(a)(1) allows a plaintiff to dismiss without a court order any defendant who has yet to serve an
answer or a motion for summary judgment.”); Miniter v. Sun Myung Moon, 736 F. Supp.2d 41,
44 n.7 (D.D.C. 2010) (where none of the defendants that plaintiff purported to dismiss had filed
an answer or motion for summary judgment – even though other defendants had done so – “the
plaintiff properly dismissed his claims against these defendants pursuant to Rule
41(a)(1)(A)(i)”).

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supplemented that Motion to confirm that it no longer seeks a judgment against Anthony Kaiser.
(See doc. 43.)) Defendants had already received the benefit of 25 days to work on their summary
judgment responses prior to the suspension of that briefing schedule; therefore, it would be
inappropriate to reset the briefing clock to the beginning.3 Instead, the briefing deadlines are
reset as follows: Any party opposing plaintiff’s Motion for Summary Judgment must file a
response (in accordance with Rule 56, Fed.R.Civ.P., and Local Rule 7.2) on or before May 18,
2012. Plaintiff may file a reply on or before June 1, 2012, at which time the Motion for
Summary Judgment will be taken under submission.

DONE and ORDERED this 8th day of May, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

3

In particular, the original briefing schedule entered on March 19, 2012 provided
that defendants’ responses to the Rule 56 Motion were due on or before April 13, 2012. (See
doc. 37.) The Court suspended that briefing schedule via Order (doc. 39) dated April 13, 2012,
just one day after the Mitchell defendants filed their Suggestion of Bankruptcy and Motion to
Stay.

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