Spanos et al v. McNeill et al

Filing 36

OPINION AND ORDER DENYING 35 Stipulation of Partial Dismissal, filed by Walter McNeill, AD Transport Express Inc. as outlined. Signed by Chief Judge Holly A Brady on 3/12/2025. (mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MATTHEW SPANOS and DAVID L. MYERS,
as Co-Personal Representatives of the Estate
of JOHN SPANOS, Deceased, Plaintiffs,
v.

Plaintiffs,

WALTER MCNEILL and A.D. TRANSPORT
EXPRESS, INC.,
Defendants.

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CASE NO. 1:23-CV-118-HAB

OPINION AND ORDER
On March 6, 2025, the parties filed a joint stipulation of partial dismissal seeking dismissal
of “any and all of Plaintiffs’ claims against A.D. TRANSPORT EXPRESS, INC., except for
Plaintiffs’ claim that A.D. TRANSPORT EXPRESS, INC. is vicariously liable for the alleged
negligence of its employee, WALTER MCNEILL…” (ECF No. 35) (“Stipulation”).
Federal Rule 41(a)(1)(A)(ii), permits a plaintiff to “dismiss an action without a court order
by filing ... a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P.
41(a). The Seventh Circuit has explained that Rule 41(a) “does not speak of dismissing one claim
in a suit; it speaks of dismissing ‘an action’—which is to say, the whole case.” Taylor v. Brown,
787 F.3d 851, 857 (7th Cir. 2015) (quoting Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772,
777 (7th Cir. 2001)). As such, a Rule 41(a) stipulation that does not dispose of the entire case is
improper. See id. at 858 n.9. (“The parties indicated that it's common practice in some district
courts in this circuit to allow the voluntary dismissal of individual claims under Rule 41(a). If that
is true, we remind judges to use Rule 15(a) instead.”).

The Stipulation filed in this matter is deficient as it makes clear that the dismissal would
not dispose of the entire case. In fact, the Stipulation states that a “singular claim against A.D.
TRANSPORT EXPRESS, INC. shall remain pending.” (ECF No. 35). According to the Seventh

Circuit, Rule 41(a) is not the proper vehicle for dropping individual parties or claims. If Plaintiff
desires, instead, to amend the complaint under Federal Rule of Civil Procedure 15(a) to remove
claims against A.D. Transport Express, Inc., leave is so granted. Plaintiff shall have fourteen (14)
days to file an Amended Complaint consistent with this Order if that is how Plaintiff intends to
proceed. Currently, this action remains pending as to all parties.
CONCLUSION
For the reasons stated above, the Stipulation to Dismiss (ECF No. 35), has no effect and
will be termed as a pending motion on the Court’s docket.
SO ORDERED on March 12, 2025.
s/ Holly A. Brady
CHIEF JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT