Clemons et al v. Heart to Heart Adoptions, Inc. et al

Filing 11

ORDER granting in part and denying in part 10 Motion to Strike; The Court's 9 Order is VACATED; 8 Notice of Voluntary Dismissal is construed as a motion to dismiss without prejudice, and it is granted. Signed by Judge Lisa G. Wood on 7/14/2017. (ca)

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^ISttiteli States! IBtssttict Contt

:lfor tl^e ^oitlliem Bisitritt of <(leorsta
IS^apcrooo IBibioion
JOHNNY S. CLEMONS, and ANGELA
TOMBERLIN,

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Plaintiffs,

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CV 517-83

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V.

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HEART TO HEART ADOPTIONS, INC.,

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DONNA POPE, individually and as
agent of Heart to Heart
Adoptions, Inc., and BONNIE
HILTON, individually and as
agent to Heart to Heart
Adoptions, Inc.,

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Defendants.

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ORDER

Plaintiffs Johnny demons (^^Clemons") and Angela Tomberlin

(^"Tomberlin") originally filed this action in the Superior Court
of Bacon County.

See Dkt. No. 1-1.

Defendants removed the

action to this Court and filed answers.

6.

See id., dkt. nos. 3,

Plaintiffs individually notified the Court of their

voluntary dismissal of this action without prejudice, dkt. nos.
7, 8, and the Court subsequently directed the Clerk to close
this case, dkt. no. 9.

Defendants now move to vacate or modify

the Court's Order, dkt. no. 9, and Strike Plaintiff demons'

voluntary dismissal, dkt. no. 7.

Dkt. No. 10.

For the reasons

below. Defendants' motion, dkt. no. 10, is GRANTED in part and
DENIED in part.

Voluntary dismissals are governed by Federal Rule of Civil
Procedure 41, which allows a plaintiff to unilaterally dismiss

an action by notice of dismissal only ""before the opposing party
serves either an answer or a motion for summary judgment." Fed.
R. Civ. P. 41(a)(1)(A)(i).

After a defendant has filed an

answer, however, the plaintiff may dismiss an action only by

filing a stipulation of dismissal signed by all parties who have
appeared.

See

Fed. R. Civ. P. 41(a)(1)(A)(ii).

Defendants argue

that because they filed their Answer before Plaintiffs filed
their notices of voluntary dismissal. Plaintiffs' notices of

voluntary dismissal—which were not signed by Defendants—do not
comply with the requirements of Rule 41. Dkt. No. 10.

The Court

agrees and VACATES its prior Order, dkt. no. 9, instructing the
Clerk to close this case as a result of Plaintiffs' dismissals.

Defendants indicate, however, that they have no objection

to dismissing Plaintiff Tomberlin's claims without prejudice.
Dkt. No. 10 at 2 n.l.

Taking the parties' contentions together,

the Court construes Plaintiff Tomberlin's notice of voluntary

dismissal, dkt. no. 8, as a motion to dismiss her claims without

prejudice.

There being no objection from Defendants, that

motion is GRANTED.

Defendants do oppose dismissing Plaintiff demons' claims

without prejudice and move to strike his notice of dismissal,
dkt. no. 7.

Dkt. No. 10 at 3-4.

While Defendants' objection to

the notice itself is warranted, a motion to strike is

unnecessary and procedurally incorrect.

^MM]otions to strike

are only appropriately addressed towards matters contained in
the pleadings[.]"

Polite v. Dougherty County School System, 314

F. App'x 180, 184 n.7 (11th Cir. 2008).

Here, the filing

Defendants seek to strike is a notice of dismissal, which is not

a pleading.

See id.; Fed. R. Civ. P. 7(a).

Accordingly,

Defendants' motion to strike, dkt. no. 10, is DENIED.

Nevertheless, because Defendants did not stipulate to dismissal

of demons' claims, see dkt. no. 7, the notice of dismissal is
nullified.

Plaintiff demons' claims remain pending.
CONCLUSION

The Court's Order, dkt. no. 9, is VACATED.

directed to reopen this case.

The Clerk is

Plaintiff Tomberlin's notice of

dismissal, dkt. no. 8, is construed as a motion to dismiss

without prejudice, and it is GRANTED.
claims are DISMISSED without prejudice.

Plaintiff Tomberlin's
The Clerk is directed

to terminate her as a plaintiff in this action.

Defendants'

Motion to Vacate or Modify the Court's Order and Strike
Plaintiff demons' Voluntary Dismissal, dkt. no. 10, is GRANTED
to the extent it seeks to vacate the Court's Order, dkt. no. 9,

but DENIED to the extent it seeks to strike Plaintiff demons'

notice of dismissal, dkt. no. 7.

Nevertheless, because

Plaintiff Clemens' notice of dismissal, dkt. no. 7, does not

comply with Rule 41, his claims remain pending.

SO ORDERED, this

day of Julyj^2017.

HON.

WOOD, JUDGE

UNITED STATES DISTRICT COURT

SOUTOERN DISTRICT OF GEORGIA