Miller's Furniture of Mercer Company v. Banner Life Insurance Company, et al

Filing 74

ORDER re 73 Notice of voluntary dismissal filed by Miller's Furniture of Mercer Company. Plaintiff's Notice of Dismissal With Prejudice 73 is DENIED without prejudice. The stay of this case is lifted. The Clerk is directed to remove the stay flag from the docket. Signed by Judge Sheri Polster Chappell on 1/10/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MILLER’S FURNITURE OF MERCER
COMPANY, a Pennsylvania
Corporation, individually and as the
representative of a class of similarlysituated persons,
Plaintiff,
v.

Case No: 2:17-cv-456-FtM-99CM

BANNER LIFE INSURANCE
COMPANY, WILLIAM PENN LIFE
INSURANCE COMPANY OF NEW
YORK, DJM ADVISORY GROUP
LLC, DONALD QUIRKE and JOHN
DOE,
Defendants.
/
ORDER1
This matter comes before the Court on review of Plaintiff’s Notice of Dismissal With
Prejudice (Doc. 73, “Notice”) filed on January 9, 2018. This junk fax case has been stayed
since October 19, 2017, pending final settlement of another case involving the identical
junk fax, JWD Automotive, Inc. v. DJM Advisory Group, LLC, et al., case no. 2:15-cv-793JES-MRM (“JWD”). The Notice informs the Court that the JWD class settlement has been

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approved and the case dismissed; therefore, Plaintiff requests that this case be dismissed
with prejudice.
Although Defendants have previously represented that final approval of the JWD
settlement would resolve Plaintiff’s claims in this case (Doc. 50 at 1-2), the Notice of
Dismissal is not stipulated to as required by Federal Rule of Civil Procedure 41. Federal
Rule of Civil Procedure 41(a)(1)(A)(ii) allows a plaintiff to dismiss an action voluntarily if
a stipulation of dismissal is signed by all parties who have appeared. Thus, the Court will
deny the request for dismissal at this time without prejudice to refiling as a stipulation. If
the JWD settlement somehow requires dismissal of this case in some other fashion,
Plaintiff must inform the Court of this. Because the JWD settlement has received final
approval and has been dismissed, the Court will lift the stay of this matter.
Accordingly, it is now
ORDERED:
(1)

Plaintiff’s Notice of Dismissal With Prejudice (Doc. 73) is DENIED without

prejudice.
(2)

The stay of this case is lifted. The Clerk is directed to remove the stay flag

from the docket.
DONE and ORDERED in Fort Myers, Florida this 10th day of January, 2018.

Copies: All Parties of Record

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