Rollason et al v. All State Van Lines Relocation, Inc. et al

Filing 52

ORDER re: 51 Notice of Voluntary Dismissal. The Court construes the Notice of Voluntary Dismissal as a Motion to Dismiss. 51 MOTION to Dismiss is GRANTED, & all Plfs' claims against Dfts Relo Van Lines, LLC & ITX, LLC are DISMISSED w/pr ejudice as set out, w/each party to bear their own costs & attorneys' fees. Plfs are DIRECTED to file a response to this Order, on or before 10/27/2020, that addresses the effect of the settlements on the default judgment previously entered against the remaining dft as well as how they intend to proceed towards the final resolution of this case. Signed by District Judge Terry F. Moorer on 10/13/2020. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SAMUEL L. ROLLASON, et al.,
Plaintiffs,
vs.
ITX, LLC, et al.,
Defendants.

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CIVIL ACTION NO. 1:18-cv-482-TFM-N

ORDER
Pending before the Court is a Notice of Voluntary Dismissal (Doc. 51, filed 10/12/2020)
filed by the remaining parties who have appeared in the case – Plaintiffs Samuel L. Rollason and
Kathleen M. Rollason and Defendants RELO VAN LINES, LLC, and ITX, LLC. These parties
request the Court dismiss with prejudice, pursuant to Fed. R. Civ. P. 41(a)(2), the plaintiffs’ claims
in this matter against the defendants, RELO VAN LINES, LLC, and ITX, LLC, with each party to
bear their own costs. Id. The notice specifically states this action is dismissed in its entirety against
all Defendants “with the exception of ALL STATE VAN LINES RELOCATION, INC.” along
with a notice that All State Van Lines Relocation, Inc., previously had default judgment entered
against it. Since the action still remains as it relates to the default judgment defendant, the Court
construes the Notice of Voluntary Dismissal as a motion to dismiss Defendants RELO VAN
LINES, LLC, and ITX, LLC, pursuant to Fed. R. Civ. P. 41(a)(2).1

1

A request to dismiss an action requires a court order and dismissal by terms the court considers
“proper” if Fed. R. Civ. P. 41(a)(1) does not apply. FED. R. CIV. P. 41(a)(2). Fed. R. Civ. P.
41(a)(1)(A) allows for dismissal without a court order: (i) before the 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. This matter involves multiple parties and the plaintiffs
request the Court dismiss only two (2) of the named defendants, and the Notice of Voluntary
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Upon consideration of the motion to dismiss (Doc. 51), it is ORDERED it is GRANTED,
and all of the plaintiffs’ claims against Defendants RELO VAN LINES, LLC, and ITX, LLC, are
DISMISSED with prejudice, with each party to bear their own costs and attorneys’ fees.
As noted previously, this leaves the default judgment entered against All State Van Lines
Relocation, Inc., in the amount of $70,000 See Doc. 36. Though the Court previously entered
default judgment in the matter for what appeared to be a sum certain, subsequently, the Plaintiffs
have settled with the other remaining defendants and the Court is now aware of some caselaw that
may affect the matter. Courts have mixed opinions on whether default judgment against should
be entered against defaulting defendants prior to resolution of the claims against the nondefaulting
defendants. See Garamendi v. Henin, 683 F.3d 1069, 1082-83 (9th Cir. 2012); Farzetta v. Turner
& Newell, Ltd., 797 F.2d 151, 154 (3d Cir. 1986); Gulf Coast Fans, Inc. v. Midwest Elecs. Imps.,
Inc., 740 F.2d 1499, 1512 (11th Cir. 1984); but see McMillian/McMillian, Inc. v. Monticello Ins.,
116 F.3d 319, 321 (8th Cir. 1997); In re Unanium Antitrust Litig., 617 F.2d 1248, 1257-58 (7th
Cir. 1980); see also Frow v. De La Vega, 82 U.S. 552, 554 (1982) (stating if a suit is decided on
merits against the Plaintiff, the complaint should be dismissed against all defendants, including
the defaulting defendants).
Therefore, Plaintiffs are DIRECTED to file a response to this Order that addresses the

Dismissal is not signed by all of the served parties. Thus, the Court finds it proper to construe the
plaintiffs’ Notice of Voluntary Dismissal as a motion to dismiss Defendants RELO VAN LINES,
LLC, and ITX, LLC, pursuant to Fed. R. Civ. P. 41(a)(2). A plaintiff may dismiss all claims
against a defendant under Fed. R. Civ. P. 41 even if there are other defendants in the case. Klay v.
United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (“[Fed. R. Civ. P.] 41 allows a
plaintiff to dismiss all of his claims against a particular defendant . . . .”); see also Plain Growers,
Inc. ex rel. Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254 (5th Cir.
1973) (“There is little merit in the argument that the court could not dismiss the action as to less
than all defendants upon motion [under (a)(2)] . . . .”); Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
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effect of the settlements on the default judgment previously entered against the remaining
defendant as well as how they intend to proceed towards the final resolution of this case. The
response to this order shall be due on or before October 27, 2020.
DONE and ORDERED this the 13th day of October 2020.
s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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