Strunk v. Liberty Insurance Corporation et al
Filing
10
MEMORANDUM OPINION & ORDER : (1) Parties' joint 9 Stipulation of Dismissal With Prejudice is GRANTED; (2) The motion to dismiss all claims against Defendant Liberty Insurance Corporation, is GRANTED; (3) All claims against Defendant Liberty Insurance Corporation are DISMISSED WITH PREJUDICE; and (4) Plaintiff Jack Strunk SHALL FILE a status report on or before 3/8/2019. Signed by Judge Joseph M. Hood on 2/20/2019.(JJ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JACK A STRUNK,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LIBERTY INSURANCE CORPORATION,
et al.,
Defendants.
Plaintiff
Corporation,
Jack
acting
Strunk
through
Case No.
5:18-cv-288-JMH
MEMORANDUM OPINION
AND ORDER
***
and Defendant
counsel,
Liberty
have
Insurance
filed
a
joint
stipulation of dismissal with prejudice of all claims asserted
against Liberty.
[DE 9].
But here, because dismissal of claims
against a single party is not appropriate under Federal Rule of
Civil
Procedure
41,
the
Court
construes
the
stipulation
dismissal as a motion to drop a single party under Rule 21.
of
Still,
it is unclear what impact this dismissal will have on the case
since
dismissal
of
Liberty
will
result
defendants remaining in this action.
in
only
two
unknown
Accordingly, the parties’
joint stipulation of dismissal is construed as a motion to drop a
party under Rule 21 and is GRANTED.
All claims against Defendant
Liberty are DISMISSED WITH PREJUDICE and the Strunk shall file a
status report concerning the claims remaining against the unknown
defendants.
1
I.
PROCEDURAL HISTORY
On April 25, 2018, this action was removed to this Court from
Garrard Circuit Court based on diversity jurisdiction.
[DE 1].
Pursuant to the Court’s scheduling order, all discovery was to be
completed by February 15, 2019.
[DE 6].
Dispositive motions are
due from the parties no later than March 15, 2019, and this matter
is scheduled for trial on May 28, 2019.
[Id.].
On February 14, 2019, Strunk and Liberty filed an agreed order
or joint stipulation of dismissal, informing the Court that all
claims that Strunk asserted against Liberty were dismissed with
prejudice.
[DE 9].
The joint stipulation makes no mention of the
claims asserted against the unknown defendants in the action.
Currently, the matter is ripe for review.
II.
A.
Applicable Law and Analysis
Dismissal of a Liberty Under Rule 21
Here, while no explicit rule is cited by the parties, it
appears that the parties move for voluntary dismissal without court
order under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
But,
as this Court has previously explained, Rule 41(a) does not allow
a court to dismiss some, but not all, of the defendants in a single
case.
See United States ex rel. Doe v. Preferred Care, Inc., 326
F.R.D. 462 (E.D. Ky. 2018).
In the Sixth Circuit, a plaintiff may
only dismiss an “action” using Rule 41(a) and an “action” is
interpreted
to
mean
the
“entire
2
controversy.”
Philip
Carey
Manufacturing Company v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961).
While
some
Circuits
disagree
with
the
Sixth
Circuit’s
interpretation of Rule 41(a), this Court is bound by Sixth Circuit
precedent.
See Preferred Care, 326 F.R.D. at 464; see, e.g., Van
Leeuwen v. Bank of Am., N.A., 304 F.R.D. 691, 693–94 (D. Utah 2015)
(discussing the circuit split and citing cases).
But
this
does
not
end
the
analysis,
because
the
Court
construes filings “by their substantive content and not by their
labels,” and, as such, this Court will consider the stipulation of
dismissal as a motion to drop a party under Rule 21.
See Coleman
v. Ohio State Univ. Med. Ctr., No. 2:11-cv-0049, 2011 WL 3273531,
at *3 (S.D. Ohio Aug. 1, 2011).
Rule 21 may be used for the dismissal of a single defendant.
See Taylor, 286 F.2d at 785 (“we think that [Rule 21] is the one
under which any action to eliminate” a single defendant should be
taken); see also Letherer v. Alger Grp., LLC, 328 F.3d 262, 266
(6th Cir. 2003), overruled on other grounds by Blackburn v. Oaktree
Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir. 2008); Wilkerson
v. Brakebill, No. 3:15-CV-435-TAV-CCS, 2017 WL 401212 (E.D. Tenn.
Jan. 30, 2017) (“Rule 21 is the more appropriate rule”);
Lester
v. Wow Car Co., Ltd., No. 2:11-cv-850, 2012 WL 1758019, at *2 n.2
(S.D. Ohio May 16, 2012) (“the Sixth Circuit has suggested that
dismissal of an individual party, as opposed to an entire action,
is properly conducted pursuant to Rule 21, not Rule 41”); Warfel
3
v. Chase Bank USA, N.A., No. 2:11-cv-699, 2012 WL 441135, at *2
(S.D. Ohio Feb. 10, 2012).
Thus, the Court construes the joint
stipulation of dismissal [DE 9] as a motion to drop a single party
under Rule 21.
“On motion or on its own, the court may at any time, on just
terms, add or drop a party.”
Fed. R. Civ. P. 21.
The rule applies
where “no relief is demanded from one or more of the parties joined
as defendants.”
Letherer, 328 F.3d at 267.
Normally, under the
rule, Courts must consider prejudice to the nonmoving party.
See
Wilkerson, 2017 WL 401212, at *2; Arnold v. Heyns, No. 13–14137,
2015 WL 1131767, at *4 (E.D. Mich. Mar. 11, 2015).
overlaps
with
Rule
41
standards
“as
guidance
The inquiry
in
evaluating
potential prejudice to the non-movant.” Wilkerson, 2017 WL 401212,
at *2.
Courts determine whether the nonmoving party would suffer
“plain legal prejudice” and consider: (1) defendant’s effort and
expense of preparation for trial; (2) excessive delay and lack of
diligence
on
plaintiff’s
part
in
prosecuting
the
case;
(3)
insufficient explanation for the need for dismissal; and (4)
whether a motion for summary judgment is pending.”
Grover v. Eli
Lily & Co., 33 F.3d 716, 718 (6th Cir. 1994).
Even so, Liberty has agreed to the dismissal of all claims
with prejudice, eliminating concern that Liberty may suffer plain
legal prejudice as a result of the dismissal.
Additionally,
dismissal of this action with prejudice will prevent the Plaintiff
4
from bringing these claims against Liberty in the future, providing
finality for Liberty.
As such, dismissal of Liberty pursuant to
Rule 21 is appropriate.
B.
Effect of Dismissal
If Liberty is dismissed as a Defendant in this action, only
two “Unknown Defendants” will remain in the lawsuit. It is unclear
if Strunk intends to proceed with this lawsuit against the two
Unknown Defendants.
On one hand, if Strunk does not intend to continue the lawsuit
against the Unknown Defendants, it appears that Strunk may dismiss
the remaining claims without a court order pursuant to Rule
41(a)(1)(A)(i) by providing notice of dismissal, seeing as the
unknown defendants have not answered or appeared in the action.
On the other hand, if Strunk intends to continue the lawsuit,
he must identify the Unknown Defendants.
Generally, courts will
not entertain lawsuits unless the plaintiff makes each defendant
a party by service of process.
See Fed. R. Civ. P. 4(m) (“If a
defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.”);
see also Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.
100, 110 (1969).
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Courts have made an exception to this rule for cases involving
unknown or “John Doe” defendants when discovery will make known
the unavailable identity of the defendant.
Newdow v. Roberts, 603
F.3d 1002, 1010 (D.C. Cir. 2010); Yates v. Young, 772 F.2d 909
(6th Cir. 1985) (unpublished table decision).
Still, “[p]laintiff
may bring an action against unknown John Doe defendants, but
plaintiff
must
substitute
named
defendants
for
those
unknown
defendants after the completion of discovery.” Simmons v. District
of Columbia, 750 F. Supp. 2d 43, 45 (D.D.C. 2011).
Here, the period for discovery has closed, and the Plaintiff
had not identified the unnamed defendants.
Even so, it is unclear
whether the Plaintiff wishes to continue this action against those
unnamed defendants and, if so, whether the Plaintiff has discovered
sufficient information through discovery to identify those unnamed
defendants.
Regardless, if this action is to continue against
only unidentified defendants, the Plaintiff must substitute named
defendants for the Unknown Defendants.
See Saffron v. Wilson, 70
F.R.D. 51, 56 (D.D.C. 1975) (noting that unknown defendants must
eventually be dismissed but allowing the opportunity for discovery
which could disclose the identity of the unknown plaintiffs).
As
a result, the Court will require a status report to clarify the
status of the Plaintiff’s claims against the unnamed defendants
after dismissal of Liberty.
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Accordingly, IT IS ORDERED as follows:
(1)
The Court construes the parties’ joint stipulation of
dismissal [DE 9] as a motion to dismiss pursuant to Federal Rule
of Civil Procedure 21;
(2)
The
motion
to
dismiss
all
claims
against
Defendant
Liberty Insurance Corporation, [DE 9] is GRANTED;
(3)
All
claims
against
Defendant
Liberty
Insurance
Corporation are DISMISSED WITH PREJUDICE; and
(4)
Plaintiff Jack Strunk SHALL FILE a status report on or
before March 8, 2019, concerning the claims against the remaining
unidentified Defendants in this action and the need, if any, for
further proceedings.
This the 20th day of February, 2019.
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