Howland 3 Investments, LLC et al v. Heritage Coal Company, LLC et al

Filing 23

MEMORANDUM AND ORDER granting 21 ; dismissing without prejudice Peabody Coal Company and Peabody Coal Company, LLC; vacating Memorandum and Order 22 . Plaintiff granted an extension of time in which to respond to Defendants' Motion to Dismiss.Signed by Judge J. Phil Gilbert on 9/1/09. (dka, )

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS HOWLAND 3 INVESTMENTS, LLC, EASY STREET AUTO WASH, INC., and JEFF MCCARTY, Plaintiffs, v. HERITAGE COAL COMPANY, LLC, PEABODY COAL COMPANY, LLC, PEABODY COAL COMPANY, a corporation, and PEABODY HOLDING COMPANY, INC., Defendants. MEMORANDUM AND ORDER This matter comes before the Court's Memorandum and Order (Doc. 22) and Plaintiffs' Motion to Voluntarily Dismiss Defendants Peabody Coal Company, LLC, and Peabody Coal Company, a corporation (Doc. 21), pursuant to Federal Rule of Civil Procedure 41(a)(2). It has come to the Court's attention that, while said order references and grants Plaintiffs' motion to voluntarily dismiss, it refers to the incorrect document number in the text (doc 17.) The Case No. 09-cv-451-JPG

Court has yet to rule on Defendants' motion to dismiss, and the previous order's inadvertent reference to such should be ignored. In addition, for clarity, the Court reiterates its order regarding Plaintiffs' motion to voluntarily dismiss as follows. Rule 41(a)(2) provides that only the Court may dismiss an action after an adverse party has filed an answer or motion for summary judgment and in the absence of a stipulation of dismissal of an entire case signed by all parties. Plaintiffs have been advised that Defendants Peabody Coal Company, LLC, and Peabody

Coal Company, a corporation, do not currently exist. Rather, these entities are names by which Defendant, Heritage Coal Company, LLC, was formerly known. Plaintiffs have conferred with Defendants' counsel, who have no objections. Because the Court has authority to dismiss the action against the currently non-existent Defendants under Federal Rule of Civil Procedure 41(a)(2), the Court hereby GRANTS the Motion to Voluntarily Dismiss (Doc. 21), DISMISSES without prejudice Defendants Peabody Coal Company, LLC, and Peabody Coal Company, a corporation, VACATES the Court's Memorandum and Order (Doc. 22) insofar as it relates to Defendants' Motion to Dismiss (Doc. 17), and GRANTS Plaintiffs an extension of time until September 11, 2009, to respond to Defendants' motion to dismiss. IT IS SO ORDERED. DATED: September 1, 2009

s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE

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