Vargas v. Lake County, Indiana et al

Filing 44

MEMORANDUM AND ORDER GRANTING 36 MOTION to Dismiss Voluntarily, Claims against Sheriff Defendants by Plaintiff Jesse Vargas and 42 MOTION to Dismiss Paragraphs 121 and 122 of Count VI with Prejudice by Plaintiff Jesse Vargas. Plaintiff is ORDERED to file an amended complaint in compliance with this order; that is, omitting counts VII through XII including duplicate count XI, and omitting paragraphs 121 and 122 of Count VI. Signed by Senior Judge James T Moody on 4/21/2016. (lhc) Modified on 4/21/2016 to correct title (lhc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JESSE VARGAS,
Plaintiff
v.
LAKE COUNTY POLICE
DEPARTMENT, et al.,
Defendants.

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2:14 CV 288

MEMORANDUM AND ORDER
Plaintiff has moved to voluntarily dismiss, with prejudice, counts VII–XII
(including a duplicative eleventh count) of his complaint, DE # 36, and moved to
voluntarily dismiss paragraphs 121 and 122 of Count VI, DE # 42. Both motions are
unopposed.
“Rule 41(a)(1)(i) does not speak of dismissing one claim in a suit; it speaks of
dismissing ‘an action’—which is to say, the whole case.” Berthold Types Ltd. v. Adobe Sys.
Inc., 242 F.3d 772, 777 (7th Cir. 2001); see also Loutfy v. R.R. Donnelley & Sons, Co., 148
F.R.D. 599, 602 (N.D. Ill. 1993) (collecting cases). Nevertheless, where parties have
stipulated to dismissal of particular claims, this court and other district courts in this
circuit, see, e.g., Gatling v. Nickel, 275 F.R.D. 495, 496 (E.D. Wis. 2011), have allowed the
practice. Here, although neither motion is opposed, there is no stipulation. Cf. Sarff v.
Farmco, LLC, No. 11-3153, 2011 WL 3489842 (C.D. Ill. Aug. 10, 2011) (Gatling not
followed for unopposed motion because no stipulation). Moreover, the request to

dismiss individual paragraphs of the complaint takes that motion beyond the purview of
Rule 41. Accordingly, the court will treat both motions as motions for leave to amend
the complaint pursuant to Rule 15(a). Cf. Loutfy, 148 F.R.D. at 602.
Treated as such, both motions (DE # 36, DE # 42) are GRANTED. Plaintiff is
ORDERED to file an amended complaint in compliance with this order; that is,
omitting counts VII through XII including duplicate count XI, and omitting paragraphs
121 and 122 of Count VI.

SO ORDERED.
Date: April 21, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT