Shelton v. Ohio Edison Company

Filing 33

Order that Shelton's notice of withdrawal will be treated as a motion for leave to amend the complaint. See order for additional details. Judge John R. Adams on 5/22/09. (L, J)

Shelton v. Ohio Edison Company

Doc. 33

ADAMS, J.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION TODD A. SHELTON, Plaintiff, v. OHIO EDISON CO., Defendant. ) ) ) ) ) ) ) ) ) CASE NO. 5:08CV3008

JUDGE JOHN R. ADAMS ORDER

This action is before the Court upon plaintiff Shelton's Notice of Withdrawal (Doc. 32) of the third cause of action in the complaint. The notice states that Shelton seeks to withdraw that claim without prejudice. When a party seeks to voluntarily dismiss some, rather than all, of the claims in a multi-count complaint, Fed. R. Civ. P. 41(a) does not apply. Rather, a court should consider the motion to be a request for leave to amend under Fed. R. Civ. P. 15. 3 Moore's Federal Practice and Procedure § 15.12[4]; Loutfy v. R.R. Donnelley & Sons, Co., 148 F.R.D. 599 (N.D. Ill. 1993) (motion to voluntarily dismiss the federal claim was treated as a motion to amend and granted as such, and the state claims were remanded to state court where the case had first been filed).1 Accordingly,

However, under Rule 41(a), an abuse of discretion is found only where a defendant would suffer s o m e plain legal prejudice as a result of a dismissal without prejudice, as opposed to the mere prospect of a s e c o n d lawsuit. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947); Grover by Grover v. E l i Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994). W h e n determining that plain legal prejudice, this Court w ill "consider such factors as the defendant's effort and expense of preparation for trial, excessive delay a n d lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for the n e e d to take a dismissal, and whether a motion for summary judgment has been filed by the defendant." Id.

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The Court will treat Shelton's Notice of Withdrawal of Third Cause of Action (Doc. 32) as a Motion for Leave to File an Amended Complaint. If Shelton does not file an Amended Complaint with the consent of Ohio Edison on or before May 27, 2009, Ohio Edison shall file a memorandum in opposition to the request for leave to amend on or before May 29, 2009.

IT IS SO ORDERED.

May 22, 2009 Date

/s/ John R. Adams John R. Adams U.S. District Judge

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