Myer v. Nationstar Mortgage LLC

Filing 16

OPINION AND ORDER rendering moot 11 Motion to Dismiss for Failure to State a Claim; granting 13 Stipulation to dismiss Count V of the Plaintiff's Complaint with prejudice. Counts I through IV remain pending. Defendant to respond to remaining counts within 20 days following the entry of this order. Signed by Judge Theresa L Springmann on 5/19/14. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CHRISTINE MYER,
Plaintiff,
v.
NATIONSTAR MORTGAGE LLC,
Defendant.

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CAUSE NO.: 4:14-CV-23-TLS

OPINION AND ORDER
The Plaintiff, Christine Myer, has sued Nationstar Mortgage LLC. The Plaintiff’s
Complaint [ECF No. 1] invokes the Telephone Consumer Protection Act, Indiana Deceptive
Consumer Sales Act, and the Fair Debt Collection Practices Act. On April 24, 2014, Defendant
filed a Motion to Dismiss Count V of the Complaint, the Fair Debt Collection Practices Act
claim, on grounds that it did not state a claim upon which relief could be granted. On May 15,
the parties filed a Stipulation for Dismissal of Count V of the Plaintiff’s Complaint for Damages,
With Prejudice [ECF No. 13]. The parties stipulate to the dismissal of the Plaintiff’s claim under
the Fair Debt Collection Practices Act, and acknowledge that the other claims (Counts I through
IV) remain pending.
Stipulated dismissals under Rule 41(a)(1)(A)(ii) do not require judicial approval. See
Fed. R. Civ. P. 41(a)(1)(A)(ii) (stating that “the plaintiff may dismiss an action without a court
order by filing . . . a stipulation of dismissal signed by all parties who have appeared”); Jenkins
v. Vill. of Maywood, 506 F.3d 622, 624 (7th Cir. 2007) (noting that a voluntary dismissal under
Rule 41(a)(1) is effective upon the filing of the stipulation); McCall-Bey v. Franzen, 777 F.2d
1178, 1185 (7th Cir. 1985) (“Rule 41(a)(1)(A)(ii) requires that the stipulation be filed in court,
and the date of filing is the date the dismissal takes effect.”). However, Rule 41(a) speaks in

terms of dismissing an “action” but does not mention the dismissal of individual claims, see
Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 776 (7th Cir. 2001) (noting that Rule
41(a)(1) speaks in terms of dismissing an action, not a claim) and thus does not apply here. This
Court follows the reasoning set forth in Gatling v. Nickel, 275 F.R.D. 495, 2011 WL 2579944
(E.D. Wis. June 28, 2011), where the district court invoked Rule 41(a)(2) to dismiss individual
claims—but not the entire action—pursuant to a stipulation of the parties. The Gatling court
noted the general consensus that Rule 41(a) provides for the voluntary dismissal of an action as
opposed to individual claims. Gatling, 275 F.R.D. at 496. However, the court further stated:
On the other hand, it should be noted that Rule 41(b), which allows a defendant to
move for involuntary dismissal, permits the movant to request and the court to grant
dismissal of the entire action, or particular claims. Fed. R. Civ. P. 41(b). While
certain cases have read this dichotomy to indicate that Rule 41(a) thus does not
permit dismissal of individual claims, else it would so state, see Hells Canyon
Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 n. 7 (9th Cir. 2005), it
does show that Rule 41 contemplates, more generally, a court’s power to dismiss
individual claims. Further, the cases which prohibit dismissal of individual claims
under Rule 41(a) have tended to do so in an adversarial context, that is for example,
the defendant opposed dismissal or the plaintiff attempted to characterize a dismissal
as voluntary on appeal. It would seem needlessly constraining, where Rule 41
otherwise contemplates dismissal of individual claims, to prohibit the dismissal of
individual claims under Rule 41(a) where both parties have stipulated to such. Thus,
the court is satisfied that it has the power to enter an order in this situation.
Gatling, F.R.D. at 496.1
In consideration of the procedural context of this case and the parties’ submissions, the
Court finds that it has the power, as the court did in Gatling, to enter an order pursuant to Rule
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Other courts have required that a plaintiff who wishes to drop some claims but not others should
do so by amending the complaint pursuant to Rule 15. See, e.g., Cedar Lakes Ventures I, LLC v. Town of
Cedar Lake, Ind., No. 2:10-cv-255, 2010 WL 3927508, at *2 (N.D. Ind. Oct. 4, 2010) (converting
“faulty” Rule 41(a)(2) motion into a Rule 15 motion to amend the complaint); Bibbs v. Newman, 997 F.
Supp. 1174, 1177 (S.D. Ind. 1998) (“A motion to dismiss voluntarily a single claim in a multi-count
complaint is more properly treated as an amendment to the original complaint under Fed. R. Civ. P.
15(a).”).

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41(a)(2) to dismiss certain claims. The Court further finds that dismissal of the claim is
appropriate because the Defendant has not filed a summary judgment motion against the
Plaintiff, the Defendant agrees to the dismissal, and the dismissal will be with prejudice. The
context in which dismissal is sought is not adversarial and there is no prejudice to the Defendant
in allowing the dismissal. It would serve no purpose here, where the parties have stipulated to the
dismissal, to require the Plaintiff to move to amend her complaint (or construe the stipulation as
a motion to amend), for which leave would be freely granted, and then require the Defendant to
answer the new complaint.

CONCLUSION
Having construed the parties’ Stipulation as a request for a Court order, the Court
GRANTS the dismissal [ECF No. 13] of Count V of the Plaintiff’s Complaint With Prejudice.
Counts I through IV of the Complaint remain pending and the Defendant has 20 days following
the entry of this Order to file a pleading in response to the remaining counts. The Motion to
Dismiss [ECF No. 11] is rendered moot.
SO ORDERED on May 19, 2014.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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