Kellems v. Sams et al

Filing 9

ORDER granting 2 Motion to Dismiss Party Party Dale Caudle and Joyce Caudle, d/b/a D-C Trucking, Terminated; denying as moot plaintiff's 4 Motion to Dismiss for Lack of Jurisdiction; Dale Caudle and Joyce Caudle terminated.. Signed by Honorable Jimm Larry Hendren on November 24, 2008. (ct)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION RICHARD L. KELLEMS, individually and as Special Administrator of the estate of TARA CLARK v. Civil No. 08-5227 PLAINTIFFS MICHAEL SAMS, individually and in his capacity as an employee of JOYCE CAUDLE d/b/a D-C TRUCKING; JOYCE CAUDLE individually and d/b/a D-C TRUCKING; DALE CAUDLE individually and d/b/a D-C TRUCKING; and HARRY BLACK ORDER Now on this 24th day of November, 2008, DEFENDANTS come on for consideration plaintiff's Motion To Non-Suit Without Prejudice (document #2) and Defendants' Motion To Dismiss Plaintiff's Complaint (document #4), and from said motions, and the response thereto, the Court finds and orders as follows: Plaintiff brought suit on the basis of diversity jurisdiction, in spite of the fact that he was an Arkansas resident, as were defendants Joyce and Dale Caudle. Apparently realizing that diversity did not exist under those circumstances, plaintiff then filed the Motion To Non-Suit Without Prejudice as to the Caudles. Simultaneously, plaintiff filed a First Amended Complaint which did not name the Caudles. The Caudles moved to dismiss the claims against them on the following day, perhaps not yet being aware of the motion filed by plaintiff. Under the circumstances, the Court finds that plaintiff's Motion To Non-Suit Without Prejudice (document #2) should be, and same hereby is, granted, and plaintiff's claims against Joyce Caudle individually and and d/b/a D-C D-C Trucking are and Dale Caudle without individually prejudice. d/b/a Trucking dismissed Defendants' Motion To Dismiss Plaintiff's Complaint (document #4) is denied as moot. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE -2-

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