Cleveland et al v. Louisville Metro Government et al

Filing 29

MEMORANDUM OPINION AND ORDER signed by Senior Judge Charles R. Simpson, III on 1/23/2017. Plaintiffs' 22 Motion for Leave to Amend Complaint is GRANTED. Claims against Miller are DISMISSED without prejudice. Defendants Taylor Banks, Beau Gadegaard, and Brian Smith's 15 Motion to Dismiss is DENIED AS MOOT. cc: Counsel(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DANIELLE CLEVELAND and
DOMINIQUE WICKER, as
Co-Administrators of the
ESTATE OF DARNELL WICKER

PLAINTIFFS
CIVIL ACTION NO. 3:16-cv-00588-CRS

v.
LOUISVILLE METRO GOVERNMENT
d/b/a LOUISVILLE METRO POLICE
DEPARTMENT, et al.

DEFENDANTS

Memorandum Opinion & Order
This matter is before the Court on the motion of Defendants Taylor Banks, Beau
Gadegaard, and Brian Smith (“the Officers”) to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Mot. Dismiss, ECF No. 15. Plaintiffs Danielle Cleveland and
Dominique Wicker (collectively, “Plaintiffs”) responded. Resp. Mot. Dismiss, ECF No. 23. The
Officers replied. Reply, ECF No. 27.
After the Officers filed their motion to dismiss, Plaintiffs moved for leave to file an
amended complaint. Mot. Amd. Compl., ECF No. 22. They seek to clarify their claims, to
dismiss Malcolm Miller as a defendant, and to add factual allegations to support their causes of
action. Id. at 1. The Officers responded. Resp. Mot. Amd. Compl., ECF No. 26. The Officers do
not object to Plaintiffs’ motion for leave to amend the complaint and admit that the amendments
render their 12(b)(6) motion to dismiss as moot. Id. at 1.
Miller responded separately to Plaintiffs’ motion for leave to amend the complaint. Miller
Resp. Mot. Amd. Compl., ECF No. 25. Miller does object to the motion to amend the complaint
but argues that the claims asserted against him should be dismissed with prejudice “given the

circumstances.” Id. at 1–2. In their reply, Plaintiffs contend that their claims against Miller
should be dismissed without prejudice because Miller “provides no reasoning to support his
motion to be dismissed with prejudice and there are many unknown facts that could support
claims against [him].” Reply, ECF No. 28.
Federal Rule of Civil Procedure 41(a) governs the voluntary dismissal of claims. The
dismissal of claims under Rule 41(a) is presumed to be without prejudice. Fed. R. Civ. P.
41(a)(2). Dismissal of claims should be granted with prejudice only when the defendant would
“suffer ‘plain legal prejudice’ . . . as opposed to facing the mere prospect of a second lawsuit.”
Grover by Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). (citing Cone v. West
Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947); Kovalic v. DEC Int'l, Inc., 855 F.2d 471,
473 (7th Cir. 1988)). The Court finds that Miller fails to show that he would suffer plain legal
prejudice if the claims against him were not dismissed without prejudice.
Accordingly, the Court GRANTS Plaintiffs’ motion for leave to amend the complaint.
The Court DISMISSES the claims against Miller without prejudice. The Court DENIES the
Officers’ motion to dismiss the claims under Rule 12(b)(6) as moot.

January 23, 2017

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