Werner v. Group Health Plan Inc

Filing 64

MEMORANDUM AND ORDER, Granting 63 MOTION to Dismiss Voluntarily Count V of Plaintiff's Second Amended Complaint, Denying as moot 55 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Group Health Plan Inc. The Court directs the Clerk of Court to enter judgment accordingly at close of case. Signed by Judge J. Phil Gilbert on 10/8/2010. (jdh, )

-PMF Werner v. Group Health Plan Inc

Doc. 64

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS DALE WERNER, Plaintiff, v. GROUP HEALTH PLAN, INC., a Coventry Health Care Plan, and CASSENS INSURANCE AGENCY, INC., Defendant. MEMORANDUM AND ORDER This matter comes before the Court on Plaintiff Dale Werner's Motion to Voluntarily Dismiss (Doc. 63). Specifically, Werner seeks to dismiss Count V of the second Amended Complaint (Doc. 50), which seeks attorneys' fees and costs pursuant to Section 155 the Illinois Insurance Code, 215 ILL. COMP. STAT. ANN. 5/155 (West 2010). In essence, Werner concedes the merits of Defendant Group Health Plan, Inc.'s ("Group Health") pending Motion to Dismiss (Doc. 55) pursuant to Federal Rule of Procedure 12(b)(6). Typically, to voluntarily dispose of only some claims against a defendant, one should file an amended complaint rather than a motion for voluntary dismissal. 8 JAMES WM. MOORE ET
AL., MOORE'S FEDERAL PRACTICE

Case No. 09-cv-891-JPG

§ 41.21[2] (3d ed. 2009). However, in light of Group

Health's agreement with the relief requested, as best evidenced by its own dismissal motion,1 this case proves to be the exception to the rule.

The Court has considered Group Health's request for attorneys' fees in the preparation and prosecution of its dismissal motion even though Group Health does not cite any authority for such a request. Ultimately, the Court does not find that the inclusion of Count V in the operative complaint represents conduct warranting imposition of an attorneys' fees sanction.

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Dockets.Justia.com

Being fully advised of the premises, the Court GRANTS the instant motion (Doc. 63), whereby the Court DISMISSES Count V, seeking attorneys' fees and costs pursuant to Section 155 of the Illinois Insurance Code, with prejudice. Further, the Court DENIES as moot Group Health's Motion to Dismiss (Doc. 55). Finally, the Court DIRECTS the Clerk of Court to enter judgment accordingly at the close of this case. IT IS SO ORDERED. DATED: October 8, 2010 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE

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