Larson v. Selective Insurance Company of the Southeast

Filing 24

ORDER denying without prejudice 23 Stipulation of Dismissal of Only Count II filed by Karen Larson. Signed by Judge John E. Steele on 6/5/2024. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KAREN LARSON,
Plaintiff,
v.

Case No:

2:23-cv-1085-JES-KCD

SELECTIVE INSURANCE COMPANY
OF THE SOUTHEAST,
Defendant.
ORDER
This matter comes before the Court on plaintiff’s Stipulation
of Dismissal of Only Count II in the Complaint (Doc. #23) filed on
June 4, 2024.
Federal Rule of Civil Procedure 41(a)(1) does not permit
dismissal of some, but not all, counts of a complaint.

A plaintiff

may dismiss “an action” pursuant to Rule 41(a)(1) without a court
order “before the opposing party serves either an answer or a
motion for summary judgment” or by “a stipulation of dismissal
signed by all parties who have appeared.”
41(a)(1)(A)(i), (ii).

Fed. R. Civ. P.

While the stipulation satisfies the “all

parties who have appeared” requirement of Rule 41(a)(1)(A)(ii) 1,
it is ineffective because it does not agree to dismiss the entire
“action.”

“A

plain

reading

reveals

that

the

Rule

does

not

See City of Jacksonville v. Jacksonville Hosp. Holdings,
L.P., 82 F.4th 1031, 1039 (11th Cir. 2023).
1

authorize the voluntary dismissal of individual claims; rather,
the Rule requires that a plaintiff dismiss the entire action.”
re Esteva, 60 F.4th 664, 675 (11th Cir. 2023).
of

Rule

41(a)(2),

which

allows

dismissal

plaintiff’s request by court order.

of

In

The same is true
an

“action”

at

Rosell v. VMSB, LLC, 67 F.4th

1141, 1144 (11th Cir. 2023) (In the Eleventh Circuit, “a Rule
41(a)(2) dismissal can only be for an entire action, and not an
individual claim.”)

See also City of Jacksonville v. Jacksonville

Hosp. Holdings, L.P., 82 F.4th 1031, 1039 (11th Cir. 2023).
As the parties are only seeking to dismiss Count II, the
voluntary dismissal will be denied.

Plaintiff may seek leave to

amend the Complaint pursuant to Fed. R. Civ. P. 15(a).
Accordingly, it is now
ORDERED:
Plaintiff’s Stipulation of Dismissal of Only Count II in the
Complaint (Doc. #23) is DENIED without prejudice to filing a motion
for leave to amend the complaint.
DONE and ORDERED at Fort Myers, Florida, this
June 2024.

Copies:
Counsel of Record

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