Dugan et al v. City of Columbus, Ohio et al

Filing 11

ORDER - Construing 10 Stipulation of Dismissal filed by City of Columbus, Ohio, Michael B Coleman, Tracie Davies as Rule 21 Motion; Terminating:( 5 MOTION to Dismiss Motion to Dismiss of Defendants Michael B. Coleman and Tracie Davies filed by Michael B Coleman, Tracie Davies. Signed by Judge Gregory L. Frost on 8/21/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
THOMAS DUGAN, et al.,
Plaintiffs,
Case No. 2:15-cv-2698
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

v.
CITY OF COLUMBUS, OHIO, et al.,
Defendants.

ORDER
On August 20, 2015, the parties filed a stipulation to dismiss Michael Coleman and
Tracie Davis as defendants pursuant to Federal Rule of Civil Procedure 41. (ECF No. 10.) In
citing to Rule 41, however, the parties ignore the Sixth Circuit’s holding in Letherer v. Alger
Group, L.L.C., 328 F.3d 262, 265-66 (6th Cir. 2003), recognized as overruled on other grounds
in Blackburn v. Oaktree Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir. 2008). See also
AmSouth Bank v. Dale, 386 F.3d 763, 778 (6th Cir. 2004).
In Letherer, the Sixth Circuit addressed its previous holding that Rule 41 is confined to
the dismissal of only an entire action and cannot provide a mechanism through which select
parties or claims can be dismissed. Letherer, 328 F.3d at 266. The Letherer court also
recognized both that the court of appeals has been inconsistent in applying this rule and that at
least five other circuits have interpreted Rule 41 less restrictively. Id. at 266 n.2. But although
appearing to question the narrow interpretation of Rule 41, the Letherer court did not resolve the
issue to permit the action undertaken by the parties here. This Court therefore has no choice but
to adhere to precedent precluding piecemeal dismissal under Rule 41. Accordingly, the parties
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cannot obtain the dismissal they seek under Rule 41.
Recognizing the parties’ intent to effectuate the dismissal of Michael Coleman and Tracie
Davis as defendants, however, this Court construes the August 20, 2015 filing as one under
Federal Rule of Civil Procedure 21. See Haley v. City of Akron, No. 5:13-cv-00232, 2014 WL
804761, at *2 (N.D. Ohio Feb. 27, 2014) (construing Rule 41 filing as a Rule 21 motion). The
Court then GRANTS the motion and drops Michael Coleman and Tracie Davis as defendants.
(ECF No. 10.) This action moots the Federal Rule of Civil Procedure 12 motion filed by
Michael Coleman and Tracie Davis. (ECF No. 5.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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