Abbott v. Humphrey et al
ORDER granting in part and denying in part 19 Motion to Dismiss Party; directing the filing of an amended motion to 9 Motion to Dismiss not later than 5/16/2011. Ordered by Judge Hugh Lawson on 5/2/2011. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
KEITH HUMPHREY, Individually and :
in his official capacity as
Superintendent, et al.,
Civil Action No. 7:10-cv-109 (HL)
Before the Court is the joint motion for dismissal with prejudice signed by all
the parties who have appeared (Doc. 19). The motion is granted in part.
The parties jointly request that Defendant Keith Humphrey in his individual
capacity and Defendant Lanier County Board of Education be dismissed with
prejudice. Pursuant to Rule 41(a)(1)(B) of the Federal Rules of Civil Procedure, a
plaintiff may dismiss a court action without court approval if he files a stipulation of
dismissal signed by all parties who have appeared. The stipulation may state that
the dismissal is with prejudice. Rule 41 allows a plaintiff to dismiss all of his claims
against a particular defendant, but a plaintiff that wishes to dismiss particular claims
within a multi-claim action “should amend the complaint under Rule 15(a) rather than
dismiss under Rule 41(a).” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106
(11th Cir. 2004).
In this case, the motion to dismiss is granted in part. Lanier County Board of
Education is dismissed, but Keith Humphrey is not since the Plaintiff asks the Court
to dismiss some, but not all, claims against him. Accordingly, the Plaintiff cannot be
granted relief under Rule 41(a)(2). If the parties wish to drop the claims against Keith
Humphrey in his individual capacity, then the Plaintiff must file a motion to amend
the complaint with the consent of the Defendants. The motion is due no later than
May 9, 2011.
There is an additional pending motion to dismiss filed by Keith Humphrey and
Lanier County Board of Education (Doc. 9). Counsel for Keith Humphrey and Lanier
County Board of Education is ordered to file an amended motion clarifying whether
the motion is moot or whether there are any remaining claims sought to be
dismissed in the motion. The amended motion is due May 16, 2011.
SO ORDERED, this the 2 nd of May, 2011.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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