D. H. Pace Company, Inc. v. AOD Group, LLC et al
Filing
75
OPINION AND ORDER GRANTING 53 Defendants' Motion for Leave to Withdraw Their Fourth Counterclaim and DENYING AS MOOT the 50 Plaintiff's Motion for Judgment on the Pleadings as to AOD's Fourth Counterclaim. Signed by Judge William S. Duffey, Jr on 11/15/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
D.H. PACE COMPANY, INC.,
Plaintiff,
v.
1:12-cv-3854-WSD
AOD GROUP, LLC and
GARRETT WALDROP,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Leave to
Withdraw Their Fourth Counterclaim [53] (“Motion to Withdraw”). Also before
the Court is Plaintiff’s Motion for Judgment on the Pleadings as to AOD’s Fourth
Counterclaim [50] (“Motion for Judgment on the Pleadings”).
I.
BACKGROUND
On November 2, 2012, Plaintiff D.H. Pace Company, Inc. (“Plaintiff”) filed
this action against Defendants AOD Group, LLC and Garrett Waldrop
(collectively, “Defendants”). Plaintiffs allege that Defendants, competitors of
Plaintiff in the business of selling and repairing garage doors, violated certain of
Plaintiff’s trademarks. Plaintiff asserts claims for unfair competition, under state
and federal law, and breach of contract.
On July 1, 2013, Defendants filed their Counterclaim against Plaintiff
asserting four (4) causes of action: (i) liability for declaratory relief (Count I);
(ii) breach of contract (Count II); breach of the implied covenant of good faith and
fair dealing (Count III); and liability for trademark misuse and anti-competitive
acts (Count IV). On September 9, 2013, Defendants filed their Motion to
Withdraw seeking leave to “withdraw and/or dismiss” Count IV of their
Counterclaim (the “Fourth Counterclaim”).1
II.
DISCUSSION
In their Motion to Withdraw, Defendants seek leave to “withdraw and/or
dismiss their Fourth Counterclaim.” The motion thus seeks leave to amend
Defendants’ pleading and is governed by Rule 15 of the Federal Rules of Civil
Procedure. See Anderberg v. Masonite Corp., 176 F.R.D. 682, 686 (N.D. Ga.
1997) (“When a party seeks to dismiss a single claim in a multi-count complaint
instead of an entire action, . . . the motion should be treated as a motion to amend
the complaint under Rule 15(a) to delete the specific claim.”). Rule 15(a) provides
that, except within certain time periods not applicable here, a party may amend its
pleading “only with the opposing party’s written consent or the court’s leave.”
1
On August 23, 2013, Plaintiffs filed their Motion for Judgment on the Pleadings
with respect to the Fourth Counterclaim.
2
Fed. R. Civ. P. 15(a)(2). The Rule provides that “[t]he court should freely give
leave when justice so requires.” Id. “In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.—the leave sought should, as the rules require, be
‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff does not argue that there is a “reason,” under Rule 15, to deny
Defendants leave to amend.2 The Court finds that allowing Defendants to
2
Plaintiff argues that Defendants should not be allowed to voluntarily dismiss their
Fourth Counterclaim without prejudice, under Rule 41(a), because of Plaintiff’s
pending Motion for Judgment on the Pleadings. Rule 41(a), which provides that
“an action may be dismissed at the plaintiff’s request only by court order,” does
not apply to Defendants’ Motion to Withdraw. See Fed. R. Civ. P. 41(a)(2)
(emphasis added); see also Fed. R. Civ. P. 41(c) (providing that Rule 41(a) applies
to the dismissal of counterclaims). Courts uniformly have held that Rule 41(a)
does not permit the dismissal of individual claims from a multi-claim action but
only authorizes the dismissal of an entire action. See 9 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2362, at 413–14 & n.13 (3d ed.
2008 & Supp. 2012) (collecting cases) (“Rule 41(a) is applicable only to the
voluntary dismissal of all the claims in an action.”); see also Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (holding that a district
court is “not empowered to dismiss only certain claims under Rule 41”); Exxon
Corp. v. Md. Cas. Co., 599 F.2d 659, 662 (5th Cir. 1979) (holding that Rule 41(a)
allows the dismissal of an “action,” not “the separate claims which make up an
action”). Defendants’ Motion to Withdraw, seeking the withdrawal of only one
counterclaim, must be decided under Rule 15. See, e.g., 9 Wright & Miller, supra,
§ 2362, at 413–14.
3
withdraw their Fourth Counterclaim will not cause any delay in the proceedings or
prejudice to Plaintiff, and Defendants’ Motion to Withdraw is granted.3
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendants’ Motion for Leave to
Withdraw Their Fourth Counterclaim [53] is GRANTED. Defendants’ Fourth
Counterclaim is WITHDRAWN.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Judgment on the
Pleadings as to AOD’s Fourth Counterclaim [50] is DENIED AS MOOT.
SO ORDERED this 15th day of November, 2013.
3
Because Defendants’ Fourth Counterclaim is withdrawn, Plaintiff’s Motion for
Judgment on the Pleadings is moot and is denied on that basis.
4
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