Rainey-Jones v. Charlie Norwood VA Medical Center et al
ORDER granting 29 Motion for Leave to File Second Amended Complaint; denying as moot 25 Partial Motion to Dismiss. Plaintiff shall file her secondamended complaint as a stand-alone entry on the docket within seven (7) days of the date of this Order. The Clerk is directed to terminate Defendants Charlie Norwood VA Medical Center and John Does as parties to this action. Signed by Chief Judge J. Randal Hall on 09/08/2020. (thb)
Case 1:19-cv-00186-JRH-BKE Document 30 Filed 09/08/20 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
CHARLIE NORWOOD VA MEDICAL
CENTER; SECRETARY OF THE
DEPARTMENT OF VETERAN AFFAIRS,
ROBERT WILKIE; and JOHN DOES,
(Doc. 25) .
CONSENT PARTIAL DISMISSAL
stipulation of partial
41(a) (1) (A) (ii) as support for the stipulation.
The Court addresses each in turn.
The Court begins with the Parties'
Plaintiff's motion for leave to file her
second amended complaint
motion to dismiss
If the stipulation of dismissal is
proper, the stipulation is "self-executing" and becomes effective
Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272,
Case 1:19-cv-00186-JRH-BKE Document 30 Filed 09/08/20 Page 2 of 5
Here, the stipulation of partial dismissal is proper in part
and improper in part.
In a recent opinion, the Eleventh Circuit
held that Federal Rule of Civil Procedure 41(a)(1) is an improper
mechanism to dismiss less than all claims in a lawsuit.
Schumacher Grp. of La., 891 F.3d 954, 958 (11th Cir. 2018).
doing so, the Eleventh Circuit noted that the plain language of
Rule 41(a)(1) contemplates dismissing an "action." Id. "There is
no mention in the Rule of the option to stipulate dismissal of a
portion of a plaintiff's lawsuit — e.g., a particular claim — while
leaving a different part of the lawsuit pending before the trial
Id. (emphasis in original).
A stipulation of dismissal
may be used, however, to dismiss an entire action against a
particular defendant in a lawsuit.
Jackson v. Equifax Info.
Servs., LLC, No. CV 119-096, 2020 WL 476698, at *1-2 (S.D. Ga.
Jan. 29, 2020).
To the extent the stipulation of partial dismissal sought
dismissal of all claims against Defendants Charlie Norwood
Medical Center and John Does, the dismissal was effective at the
time of filing.
Because the stipulation of partial dismissal also
sought dismissal of some, but not all, claims against Defendant
Secretary of the
Department of Veteran Affairs, Robert Wilkie
("Wilkie"), the stipulation of partial dismissal was improper as
to those claims.
Accordingly, the stipulation of partial dismissal
Case 1:19-cv-00186-JRH-BKE Document 30 Filed 09/08/20 Page 3 of 5
terminated Defendants Charlie Norwood VA Medical Center and John
Does, but the claims against Defendant Wilkie survived.
II. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Possibly recognizing the stipulation of partial dismissal's
failure to achieve all of her desired goals, Plaintiff filed her
motion for leave to file her second amended complaint.
Because the motion falls outside the time period for Plaintiff to
amend her complaint as a matter of course, see Fed. R. Civ. P.
15(a)(1), Plaintiff may amend her complaint ''only with the opposing
party's written consent or the court's leave."
Plaintiff apparently contends that the consent motion for partial
dismissal, signed by all parties, is written consent that the
Defendants agree to the motion to amend.
(See Consent Partial
Dismissal, at 2; Mot. for Leave to File Second Am. Compl., Doc.
29, at 1.)
Moreover, Perry specifically contemplated the use of
Perry, 891 F.3d at 958.
The Court finds no reason
to deny Plaintiff s motion for leave to file her second amended
complaint under Rule 15(a)(2)
1 Plaintiff failed to acknowledge Rule 16's applicability to the present motion.
In the Eleventh Circuit, when a "motion to amend [i]s filed after the scheduling
order's deadline, [the moving party] must first demonstrate good cause under
Rule 16(b) before [the court] will consider whether amendment is proper under
Rule 15(a)." Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).
The Scheduling Order's deadline to amend expired May 22, 2020.
Order, Doc. 17.)
Despite Plaintiff's lack of attention to Rule 16(b), in light
Case 1:19-cv-00186-JRH-BKE Document 30 Filed 09/08/20 Page 4 of 5
III. DEFENDANTS' PARTIAL MOTION TO DISMISS
Finally, the Court addresses Defendants' partial motion to
complaint without legal effect."
Renal Treatment Ctrs.—Mid-Atl.,
2009 WL 995564, at *1 (S.D. Ga. Apr. 13, 2009) (quoting In re
Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928
(8th Cir. 2005)) (citing Fritz v. Standard Sec. Life Ins. Co. of
N. Y., 676 F.2d 1356, 1358 (11th Cir. 1982)); accord Malowney v.
Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n.l (11th Cir.
1999) ("An amended complaint supersedes an original complaint.").
Plaintiff's first amended complaint, the superseding complaint
moots Defendants' partial motion to dismiss.
For the aforementioned reasons, IT IS HEREBY ORDERED that
Plaintiff s motion for leave to file her second amended complaint
(Doc. 29) is GRANTED and Defendants' partial motion to dismiss
(Doc. 25) is DENIED AS MOOT.
Plaintiff shall FILE her second
amended complaint as a stand-alone entry on the docket within seven
of Defendants' reported consent and Perry, the Court finds good cause to amend
Case 1:19-cv-00186-JRH-BKE Document 30 Filed 09/08/20 Page 5 of 5
(7) days of the date of this Order.
The Clerk is DIRECTED to
Defendants Charlie Norwood VA Medical Center and John
Does as parties to this action.^
J. RA^mMT^HALL, CfilEF JUDGE
UNITED s/aTES DISTRICT COURT
DISTRICT OF GEORGIA
2 The Docket currently reflects "Secretary of the Department of Veteran Affairs"
and "Robert Wilkie" as separate defendants. Robert Wilkie is the Secretary of
the Department of Veteran Affairs. Accordingly, the Clerk is FURTHER DIRECTED
to CONSOLIDATE Secretary of the Department of Veteran Affairs and Robert Wilkie
as one defendant.
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