Zhou v. International Business Machines Corporation et al

Filing 122

ORDER re 118 Pro Se Response to Motion filed by Shaunpen Zhou and 119 Reply to Response to Motion filed by Artech Information Systems, LLC re 99 Motion for Summary Judgment filed by Artech Information Systems, LLC: Counts 2, 4, 5, 8 and 10 are dismissed with prejudice as to Defendant Artech. Artech is dismissed from the instant action and Artech's 99 Motion for Summary Judgment is denied as moot. Signed by Chief Judge Linda R Reade on 1/23/2017 (copy w/NEF eZhou). (skm) (Additional attachment(s) added on 1/23/2017: # 1 Return Confirmation) (skm).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION SHAUNPEN ZHOU, Plaintiff, No. 15-CV-1027-LRR vs. ORDER INTERNATIONAL BUSINESS MACHINES CORPORATION and ARTECH INFORMATION SYSTEMS, LLC, Defendants. ____________________ The matter before the court is Plaintiff Shaunpen Zhou’s pro se “Response to Defendant Artech’s Motion for Summary Judgment” (“Motion”) (docket no. 118), which he filed on January 20, 2017. In the Motion, Zhou seeks to “voluntarily withdraw[] the claims against Defendant Artech [Information Systems, LLC (“Artech”)] set forth in Cou[n]ts 2, 4, 5, 8, and 10 of his Amended Complaint.” Motion at 3; see also Amended Complaint (docket no. 52). Though it is not styled as such, the court shall treat the Motion as arising under Federal Rule of Civil Procedure 41(a)(2). Rule 41(a)(2) requires a court order to dismiss an action by plaintiff’s request unless the notice of dismissal precedes an answer or motion for summary judgement or is accompanied by a stipulation of dismissal signed by all parties, neither of which applies here. See Fed. R. Civ. P. 41(a); see also Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004) (noting that, where a party appears pro se, his or her pleadings should be “construe[d] . . . in a way that permits the layperson’s claim to be considered within the proper legal framework”). Also on January 20, 2017, Artech filed a “Reply in Support of its Motion for Summary Judgment” (“Reply”) (docket no. 119). In the Reply, Artech notes that Counts 2, 4, 5, 8 and 10 of the Amended Complaint are the only claims in which Artech is named, and Artech therefore does not resist dismissal of those claims against it. Reply at 2. For the reasons stated in the Motion, and because Artech has effectively consented to the Motion, the Motion is GRANTED. Counts 2, 4, 5, 8 and 10 are DISMISSED WITH PREJUDICE as to Defendant Artech. Because no claims against Artech remain pending, Artech is DISMISSED from the instant action and Artech’s Motion for Summary Judgment (docket no. 99) is DENIED AS MOOT. IT IS SO ORDERED. DATED this 23rd day of January, 2017. 2

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