Spears v. SHK Consulting and Development, Inc. et al

Filing 51

ORDER re 50 Stipulation of Dismissal filed by Daniel C. Spears, Jr. The parties' Stipulation of Dismissal (Doc. 50 ) is DENIED without prejudice. Signed by Judge Sheri Polster Chappell on 10/9/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL C. SPEARS, JR.,
Plaintiff,
v.

Case No: 2:18-cv-286-FtM-38MRM

SHK CONSULTING AND
DEVELOPMENT, INC. and DAVID B.
NIRENBERG,
Defendants.
/
ORDER1
Before the Court is the parties’ Stipulation of Dismissal. (Doc. 50). The parties
seek to dismiss Plaintiff’s Infringement by Equivalents claim under Federal Rule of Civil
Procedure 41. (Doc. 50). For the following reasons, the parties’ stipulation is ineffective.
Federal Rule of Civil Procedure 41(a)(1)(A) allows a plaintiff to dismiss an action
without a court order by filing “a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment” or “a stipulation of dismissal signed
by all parties who have appeared.” Rule 41 allows a party to dismiss an action, but it
does not allow a plaintiff to dismiss a portion of its lawsuit against a party. Perry v.
Schumacher Group of Louisiana, 891 F.3d 954, 958 (11th Cir. 2018). It is thus the wrong

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procedural mechanism to dismiss a particular claim against a party. Instead, a plaintiff
may eliminate particular claims by amending the complaint. See Campbell v. Altec
Industries, Inc., 605 F.3d 839, 841 n.1 (11th Cir. 2010) (noting that a plaintiff may
eliminate particular claims and issues under Federal Rule of Civil Procedure 15(a)).
Here, the parties seek to dismiss one claim amongst many. (Docs. 31; 50). Such
a stipulation under Rule 41 is ineffective. If the Plaintiff wishes to eliminate an individual
claim, he may seek leave to do so under Federal Rule of Civil Procedure 15(a).
Accordingly, it is now
ORDERED:
The parties’ Stipulation of Dismissal (Doc. 50) is DENIED without prejudice.
DONE and ORDERED in Fort Myers, Florida this 9th day of October 2018.

Copies: All Parties of Record

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