MILLER et al v. THAYER CORPORATION et al

Filing 28

ORDER granting with prejudice 27 Motion to Dismiss Pit Stop Fuels, Inc. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RAYMOND MILLER, et al.,
Plaintiffs,
v.
THAYER CORPORATION, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

2:10-cv-00307-JAW

ORDER ON MOTION TO DISMISS
On July 29, 2011, with the consent of the Plaintiffs and Defendant Thayer
Corporation, Defendant Pit Stop Fuels, Inc. moved the Court to dismiss with
prejudice all claims against it. Def. Pit Stop Fuels, Inc.’s Unopposed Mot. to Dismiss
Pit Stop Fuels, Inc. (Docket # 27). There is some controversy whether a motion to
eliminate a party should be filed under Rule 21 or Rule 41.

Compare Harvey

Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (1953) (“Rule 21 provides
that „Parties may be dropped or added by order of the court on motion . . . and we
think that this rule is the one under which any action to eliminate Reynolds as a
party should be taken”), with Leroux v. Lomas & Nettleton Co., 626 F. Supp. 962,
965-67 (D. Mass. 1986). The better view is that either rule is appropriate since
under either Rule, the motion is subject to the discretion of the court. 7 CHARLES
ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
PROCEDURE § 1684 (3d ed. 2001).

AND

Accordingly, the Court GRANTS the Defendant‟s Unopposed Motion to
Dismiss Pit Stop Fuels, Inc. (Docket # 27) and dismisses all claims against Pit Stop
Fuels, Inc. with prejudice.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 29th day of July, 2011

2