Lischke v. Stewart et al
ORDER granting 34 Motion to Dismiss Certain Counts in the Amended Complaint with the Court construing the motion as a motion for leave to amend the complaint to eliminate Counts 5, 6 & 7. The Court declines to exercise supplemental jurisdiction over Plaintiff's state law medical negligence claim. Therefore, this action is dismissed without prejudice. Signed by Judge Kristi K. DuBose on 12/22/2016. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MATTHEW JOSEPH LISCHKE,
CYNTHIA STEWART, et al.,
Civil Action No. 15-0646-KD-M
This action is before the Court on Plaintiff Matthew Joseph Lischke’s Motion to Dismiss
Certain Counts in the Amended Complaint (doc. 34). Plaintiff moves the Court to voluntarily
dismiss Counts Five, Six and Seven against the remaining Defendants Corizon, Inc. and Dr.
The Court of Appeals for the Eleventh Circuit has explained that when a plaintiff seeks to
dismiss a claim against a defendant but not the entire cause of action, filing a motion to amend
the complaint is the proper procedure. See Campbell v. Altec Industries, Inc., 605 F. 3d 839, 841
(11th Cir. 2010) (“Our circuit precedent dictates that Rule 41 allows a plaintiff to dismiss all of
his claims against a particular defendant; its text does not permit plaintiffs to pick and choose,
dismissing only particular claims within an action. A plaintiff wishing to eliminate particular
claims or issues from the action should amend the complaint under Rule 15(a) rather than
dismiss under Rule 41(a).”) (quoting Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106
(11th Cir. 2004) (quoting 8 Moore's Federal Practice § 41.21, at 41-32)) (internal quotation
marks omitted). Accordingly, the Court construes the Plaintiff’s Motion as a motion for leave to
Counts One through Four, and part of Count Five alleging claims against Defendants
Cynthia Stewart and Anthony Stonewall have been dismissed (doc. 27).
amend his complaint to eliminate Counts Five, Six and Seven.
Rule 15(a)(2) of the Federal Rules of Civil Procedure applies in this procedural posture.
Therefore, Plaintiff “may amend” his “pleading only with the opposing party's written consent or
the court's leave” and the “court should freely give leave when justice so requires.” Fed. R. Civ.
Since the opposing parties have not given their written consent, the Court looks to
whether leave to amend should be granted.
In that regard, a “district court may, in the exercise of its inherent power to manage the
conduct of litigation before it, deny such leave where there is substantial ground for doing so,
such as ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of amendment.’” Reese v. Herbert, 527 F.3d
1253, 1263 (11th Cir. 2008) (brackets in original) (quoting Burger King Corp. v. Weaver, 169
F.3d 1310, 1319 (11th Cir.1999) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230,
9 L.Ed.2d 222 (1962)). Therefore, “there must be a substantial reason to deny a motion to
amend.” Laurie v. Ala. Ct. of Crim. App., 256 F.3d 1266, 1274 (11th Cir. 2001). Also, the federal
rules favor allowing amendments. Dussouy v. Gulf Coast Investment Co., 660 F.2d 594, 597 (5th
Cir. 1981) (“The policy of the federal rules is to permit liberal amendment to facilitate
determination of claims on the merits and to prevent litigation from becoming a technical
exercise in the fine points of pleading.”).2
Upon review of the docket, the Court has not ascertained any substantial reason to deny
Although Dussuoy was decided after September 30, 1981, the Court of Appeals for
the Eleventh Circuit has treated Dussuoy as binding precedent. Bank v. Pitt, 928 F.2d 1108, 1112
n. 4 (11th Cir. 1991) (overruled on other grounds by Wagner v. Daewoo Heavy Indus. America
Corp., 314 F.3d 541 (11th Cir. 2002)).
the Motion. Moreover, the interests of justice indicate that the Motion should be granted. See
Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir.1988) (citation omitted) (“[U]nless there
is a substantial reason to deny leave to amend, the discretion of the district court is not broad
enough to permit denial.”) Accordingly, Plaintiff’s Motion is GRANTED and his Amended
Complaint is deemed amended to eliminate Counts Five, Six and Seven.
Only the Plaintiff’s state law medical negligence claim (Count Eight) remains pending
before the Court. Jurisdiction over this claim was based on 28 U.S.C. § 1367, which provides the
district court with “supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or controversy[.]”
However, the statute further provides that the Court may decline supplemental jurisdiction when
“the district court has dismissed all claims over which it has original jurisdiction” such as in this
action. 28 U.S.C. § 1367(c)(3). In this circumstance, the Supreme Court has explained that
a federal court should consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience, fairness, and comity in
order to decide whether to exercise jurisdiction over a case brought in that court
involving pendant [now “supplemental”] state-law claims. When the balance of
these factors indicates that a case properly belongs in state court, as when the
federal-law claims have dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the exercise of
jurisdiction by dismissing the case without prejudice.
Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349-50 (1988), (citing United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726-27 (1966)). “[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of factors to be considered under the
pendent [now supplemental] jurisdiction doctrine — judicial economy, convenience, fairness,
and comity — will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Carnegie-Mellon, 484 U.S. at 350 n.7 (bracketed text added). Importantly, in the
Eleventh Circuit, the district courts have been instructed that “if the federal claims are dismissed
prior to trial, Gibbs strongly encourages or even requires dismissal of state claims[.]” L.A.
Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984); see also
Gillentine v. Correctional Medical Services, Inc., 2016 WL 7325708, * 12 (N.D. Ala. Dec. 16,
2016) (declining the exercise of supplemental jurisdiction over state law claims when the district
court had “dismissed all claims over which it has original jurisdiction.”) (quoting 28 U.S.C. §
1367(c)(3)). Accordingly, the Court declines to exercise supplemental jurisdiction over
Plaintiff’s state law medical negligence claim. Therefore, this action is dismissed without
Plaintiff is reminded that pursuant to 28 U.S.C. § 1367(d), the statute of limitations
applicable to Count Eight is tolled during the pendency of this action and for a period of thirty
(30) days after dismissal.
DONE this 22nd day of December 2016.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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