Blackwell-Wilson v. Synchrony Bank et al

Filing 51

MEMORANDUM OPINION & ORDER: 1. The Court construes Plaintiff's Notice of Voluntary Dismissal #50 as a motion to dismiss; 2. The Motion to Dismiss is GRANTED; 3. All claims against Defendant Equifax Information Services, LLC are DISMISSED WITH PREJUDICE; 4. This dismissal does not apply to remaining Defendant Synchrony Bank. Signed by Judge Joseph M. Hood on 11/19/2020.(KM)cc: COR

Case: 5:19-cv-00273-JMH Doc #: 51 Filed: 11/19/20 Page: 1 of 5 - Page ID#: 269

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARY BLACKWELL-WILSON,
Plaintiff,
v.
SYNCHRONY BANK, et al.,
Defendants.

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Civil Case No.
5:19-CV-273-JMH
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court on Plaintiff Mary BlackwellWilson’s Notice of Voluntary Dismissal [DE 50], indicating that
all claims against Defendant Equifax Information Services, LLC
(“Equifax”) may be dismissed with prejudice. The claims against
Defendant Synchrony Bank will remain.
Since dismissal of claims against a single party is not
appropriate under Federal Rule of Civil Procedure 41, the Court
construes the Notice of Voluntary Dismissal [DE 50] as a motion to
dismiss

under

Rule

21.

Accordingly,

Plaintiff’s

Notice

of

Voluntary Dismissal [DE 50] will be GRANTED and the claims against
Equifax will be DISMISS WITH PREJUDICE.
I.

PROCEDURAL HISTORY

On July 10, 2019, Plaintiff filed her complaint, alleging
that the Defendants were negligent, had committed defamation, and
had violated provisions of the Fair Credit Reporting Act. [DE 1].
1

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Equifax has not filed an answer or a motion for summary judgment.
Now, Plaintiff seeks to dismiss Equifax from this action with
prejudice. [DE 50].
II.

DISCUSSION

Here, Plaintiff notifies the Court that she is dismissing
Equifax from this action. However, 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.1 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

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).
Rule 21, however, 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

The Court has previously informed Plaintiff Mary BlackwellWilson that such motion to dismiss a single party are to be
brought pursuant to Rule 21. See DE 46.
1

2

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should be taken); see also Letherer v. Alger Grp., LLC, 328 F.3d
262, 266 (6th Cir. 2003); United States v. Roberts, No. 5:19-cv234-JMH, 2019 WL 6499128, at *2 (E.D. Ky. Dec. 3, 2019); 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”). Thus,
the Court construes the Notice of Voluntary Dismissal [DE 50] as
a motion to dismiss only Equifax 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. Under Rule 21, Courts
must consider prejudice to the nonmoving party. See Wilkerson,
2017 WL 401212, at *2. The inquiry overlaps with Rule 41 standards
“as guidance in evaluating potential prejudice to the non-movant.”
Id. When determining whether the nonmoving party would suffer
“plain legal prejudice,” Courts 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
3

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Lily & Co., 33 F.3d 716, 718 (6th Cir. 1994). The Court will
consider the relevant factors below.
First, Equifax has not filed an answer, so it has likely
expended little time and few resources, if any, preparing for trial
in this matter. In fact, the Court has yet to entered a scheduling
order, so there is no trial date pending in this case. As a result,
the first factors supports dismissal.
Second, there is no indicia of any delay or lack of due
diligence on the part of Plaintiff in this matter. On the contrary,
it appears that Plaintiff is engaging in a good faith attempt to
resolve the dispute in a timely manner, which supports dismissal.
Third, Plaintiff provides no explanation for the dismissal of
Equifax as a Defendant, so this factor weighs against dismissal
under Rule 21.
Fourth, and finally, there is no pending motion for summary
judgment in this matter. Thus, the fourth factor weighs in favor
of dismissal.
Here, three of the four relevant factors to be considered
before dismissal under Rule 21 weigh in favor of dismissal of the
claims against Equifax.
Accordingly, IT IS ORDERED as follows:
(1)

The Court construes Plaintiff Mary Blackwell-Wilson’s

Notice of Voluntary Dismissal [DE 50] as a motion to dismiss to
dismiss pursuant to Federal Rule of Civil Procedure 21;
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(2)

The Motion to Dismiss, based on the Notice of Voluntary

Dismissal [DE 50] is GRANTED;
(3)

All

claims

against

Defendant

Equifax

Information

Services, LLC are DISMISSED WITH PREJUDICE;
(4)

This dismissal does not apply to remaining Defendant

Synchrony Bank.
This the 19th day of November, 2020.

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