Clemons et al v. Heart to Heart Adoptions, Inc. et al
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)
^ISttiteli States! IBtssttict Contt
:lfor tl^e ^oitlliem Bisitritt of <(leorsta
JOHNNY S. CLEMONS, and ANGELA
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
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.
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
Fed. R. Civ. P. 41(a)(1)(A)(ii).
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.
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
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
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
See id.; Fed. R. Civ. P. 7(a).
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
Plaintiff demons' claims remain pending.
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.
The Clerk is directed
to terminate her as a plaintiff in this action.
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.
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.
UNITED STATES DISTRICT COURT
SOUTOERN DISTRICT OF GEORGIA
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