Ashford v. Nebraska Furniture Mart, Inc. et al

Filing 21

MEMORANDUM AND ORDER - See Order for details and deadlines. Signed by District Judge Daniel D. Crabtree on 4/11/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ELENA MAE ASHFORD,
Plaintiff,
Case No. 17-cv-02097-DDC-GLR
v.
NEBRASKA FURNITURE MART, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
Originally, plaintiff sued four defendants in this case: Nebraska Furniture Mart, Inc.;
Equifax Information Services, LLC; Experian Information Solutions, Inc.; and Trans Union,
LLC. Doc. 1. For reasons that properly are her own, plaintiff has decided to stop litigating with
three of them—Experian (Doc. 16), Trans Union (Doc. 17), and Equifax (Doc. 18). Her filings
invoke a variety of Rule 41’s tools to pursue this end.
For Experian, plaintiff invoked Fed. R. Civ. P. 41(a)(1) and calls her filing a “Dismissal
of All Plaintiff’s Claims” against that defendant. The content of this filing asserts that plaintiff
“dismisses the above-captioned action, including all [of her] claims against [Experian] only.”
Doc. 16. Plaintiff replicates this filing for defendant Equifax, using the same title, invoking the
same subpart of Rule 41, and employing the same operative language. Doc. 18. Neither the
Experian nor the Equifax filing specifies whether the desired dismissal is with or without
prejudice. So, Rule 41(a)(1)(B) would treat these dismissals as ones without prejudice.
Plaintiff’s dismissal filing for defendant Trans Union, the only defendant to plead a
response to her Complaint, differs from the other two. Also invoking Rule 41(a)(1), plaintiff and
Trans Union’s counsel signed and filed something they call a “Stipulation of Dismissal with

Prejudice of All Plaintiff’s Claims Against [Trans Union] Only.” Doc. 17. This filing provides
that plaintiff and Trans Union “agree and stipulate to the dismissal WITH PREJUDICE of the
above-captioned action, including all of Plaintiff’s claims against” Trans Union. Id.
Because two of plaintiff’s dismissal filings did not comport precisely with Rule 41, the
court has examined the rule closely.1 This examination led the court to a question far more
nuanced than it anticipated. Namely, in a multi-defendant case, how can a plaintiff dismiss the
claims against some but not all of the defendants? This led the analysis to the Circuit’s holding
in Gobbo Farms & Orchards v. Poole Chemical Co., 81 F.3d 122 (10th Cir. 1996). There, the
Tenth Circuit held that Rule 41(a) “speaks to dismissal of an action, [and] not just a claim within
an action.” Id. at 123. It explained this holding by observing that the plaintiff “offer[ed] no
authority, and we have found none, to support its contention that Rule 41(a) applies to dismissal
of [fewer] than all claims in an action.” Id.
The district courts in the Circuit have interpreted Gobbo Farms’s language differently.
Some, like the District of Colorado in Carnett v. Watts, hold that, though “[t]here is uncertainty
in the Tenth Circuit whether Fed. R. Civ. P. 21 . . . or 41 . . . applies to the dismissal of a party
from an action involving more than one defendant,” “in most instances . . . it is immaterial
whether the dismissal is effectuated under Rule 21 or 41.” No. 15-cv-02437-RM-KMT, 2016
WL 705986, at *1 (D. Colo. Feb. 23, 2016) (citations omitted). And others, like the District of
Utah in Van Leeuwen v. Bank of America, hold that Gobbo Farms’s holding is limited to
dismissing claims, not parties, and so “Gobbo should not . . . block [a] plaintiff’s use of Rule
41(a)(1)(A)(i) to dismiss all claims against” fewer than all defendants. 304 F.R.D. 691, 696–97
(D. Utah 2015).
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A puzzling aspect of all three filings is how they describe their dismissing effect. Each one asserts that it is
dismissing “the action” but goes on to explain that it dismisses only plaintiff’s claims against a particular defendant.
In short, the filings appear to dismiss the entire case but then limit the dismissal just to certain claims.

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Our court has considered the issue addressed in Gobbo Farms several times. Three years
before that decision, a Kansas case predicted Gobbo Farms’s holding in Campbell ex rel.
Jackson v. Hoffman, and then proceeded to discuss whether parties could use Rule 41(a) to
dismiss just one party in a multi-defendant case. 151 F.R.D. 682, 684 (D. Kan. 1993). In that
case, Judge Rogers explained that “courts and . . . commentators have been more willing to
accept the argument that Rule 41 can be utilized to dismiss one defendant or some, but not all,
defendants,” and added that he agreed with this use of Rule 41. Id. (citations omitted). But,
Judge Rogers also noted that he didn’t need to “employ such a tactic” because he had already
granted the plaintiff’s request to dismiss the claims at issue under Rule 15. Id.2
After Gobbo Farms, as one would expect, our court consistently has noted that Rule 41
does not apply to dismissals of fewer than all claims. See, e.g., Carpenter v. The Boeing Co.,
223 F.R.D. 552, 556 (D. Kan. 2004) (Rule 41(a)(2) “provides for dismissals of actions, not
claims” (citations omitted)), aff’d, 456 F.3d 1183 (10th Cir. 2006); HR Tech., Inc. v. Imura Int’l
U.S.A., Inc., No. 08-2220-JWL, 2011 WL 2174919, at *2 (D. Kan. June 3, 2011) (“Rule 41
applies only to the dismissal of an entire action and not merely the dismissal of a claim.”
(citation omitted)); Baxter State Bank v. Bernhardt, No. 96-2460-JWL, 1998 WL 164631, at *3
n.3 (D. Kan. Mar. 3, 1998) (declining to address the question because the parties did not raise it,
but noting that Rule 41 does not apply to dismissal of fewer than all claims).
So, the current case comes to the court in this posture: Plaintiff wants to stop litigating
with three of the four defendants she originally sued. Surely our rules permit—and even
support—such a laudable outcome. But binding precedent casts doubt on the parties’ ability to

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This court also considered whether Rule 41 applies to a plaintiff’s request to dismiss fewer than all claims in In re
Wyoming Tight Sands Anti Trust Cases, 128 F.R.D. 121 (D. Kan. 1989). There, Judge Saffels decided to apply Rule
15 instead of Rule 41(a)(2). Id. at 123.

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use the procedural mechanism that they have chosen. Hoping to bring a pragmatic and efficient
solution to this dilemma, the court rules as follows.
First, the court, in its discretion, elects to construe Docs. 16, 17, and 18 as motions to
amend plaintiff’s Complaint to omit her claims against defendants Equifax Information Services,
LLC; Experian Information Solutions, Inc.; and Trans Union, LLC. Given the relaxed standard
applied by Rule 15 to such requests so early in a case, the court grants the request to amend.
Plaintiff may eliminate defendants and claims at issue in the case by filing an amended
complaint within 14 days of the date of this Order. This amended complaint properly may omit
all claims against the three defendants who plaintiff, in Docs. 16 through 18, has agreed may
depart from this case.
Second, the court is aware that the agreement between plaintiff and Trans Union, LLC
contemplates a conclusion with prejudice to plaintiff’s claims with that defendant. Whether an
amended complaint that omits Trans Union, LLC as a defendant in this action will give effect to
the spirit of those parties’ agreement is a consideration that the court must entrust to them. For
the court to address that concern now as something of an anticipated hypothetical would engage
the court improperly in the forbidden business of giving advisory opinions. See Norvell v.
Sangre de Criso Dev. Co., Inc., 519 F.2d 370, 375 (10th Cir. 1975) (“It is fundamental that
federal courts do not render advisory opinions . . . .” (citations omitted)).
IT IS SO ORDERED.
Dated this 11th day of April, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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