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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Kn ^ISttiteli States! IBtssttict Contt :lfor tl^e ^oitlliem Bisitritt of <(leorsta IS^apcrooo IBibioion JOHNNY S. CLEMONS, and ANGELA TOMBERLIN, * * * Plaintiffs, * * CV 517-83 * V. * HEART TO HEART ADOPTIONS, INC., * 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., * * * * * * Defendants. * 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

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