Miller v. Experian Information Solutions, Inc. et al

Filing 48

REPORT & RECOMMENDATION1 THAT: (1) THE PARTIES STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE OF DEFENDANTS, EXPERIAN INFORMATION SOLUTIONS, INC. AND WITES & KAPETAN, P.A., PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(ii) (DOCS. 42, 43) BE CONSTRUED AS JOINT, UNOPPOSED MOTIONS TO DISMISS PURSUANT TO FED. R. CIV. P. 21; (2) BOTH MOTIONS BE GRANTED; AND (3) DEFENDANTS EXPERIAN INFORMATION SOLUTIONS, INC. AND WITES & KAPETAN, P.A. BE DISMISSED WITH PREJUDICE. Objections to R&R due by 7/10/2014. Signed by Magistrate Judge Michael J Newman on 06/23/14. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CARIN MILLER,
Plaintiff,

Case No.: 3:13-CV-90

vs.
EXPERIAN INFORMATION
SOLUTIONS, INC., et al.,

Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendants.
REPORT & RECOMMENDATION 1 THAT: (1) THE PARTIES’ STIPULATION
OF VOLUNTARY DISMISSAL WITH PREJUDICE OF DEFENDANTS,
EXPERIAN INFORMATION SOLUTIONS, INC. AND WITES & KAPETAN, P.A.,
PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(ii) (DOCS. 42, 43) BE CONSTRUED
AS JOINT, UNOPPOSED MOTIONS TO DISMISS PURSUANT TO
FED. R. CIV. P. 21; (2) BOTH MOTIONS BE GRANTED; AND (3) DEFENDANTS
EXPERIAN INFORMATION SOLUTIONS, INC. AND WITES & KAPETAN, P.A. BE
DISMISSED WITH PREJUDICE

Seeking to proceed pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiff and Defendants,
Experian Information Solutions, Inc. (“Experian”) and Wites & Kapetan, P.A. (“W&K”), filed
joint stipulations seeking the dismissal with prejudice of Plaintiff’s claims against both parties,
with each party to bear its own attorney’s fees and costs in this action. Docs. 42, 43. The parties
advise the Court that they have reached a settlement regarding the claims involving both
Experian and W&K. Id.
Rule 41(a)(1)(A)(ii) states that “the plaintiff may dismiss an action without a court order
by filing[] a stipulation of dismissal signed by all parties who have appeared.” Conversely, Rule
21 provides that, “On motion or on its own, the court may at any time, on just terms, add or drop
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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

a party.” The Sixth Circuit has held that Rule 21 is the proper vehicle for the dismissal of
individual parties from the action, and Rule 41, conversely, is appropriate only for dismissal of
the entire action. Letherer v. Alger Grp., LLC, 328 F.3d 262, 266 (6th Cir. 2003) (“Rule 41(a)(1)
provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the word ‘action’ as used in the
Rules denotes the entire controversy, whereas ‘claim refers to what has traditionally been termed
‘cause of action.’ Rule 21 proves 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 . . . a party
should be taken” (quoting Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961))),
recognized as overruled on other grounds in Blackburn v. Oaktree Capital Mgmt. LLC, 511 F.3d
633, 636 (6th Cir. 2008).
IT IS THEREFORE RECOMMENDED THAT:
1. The parties’ stipulation of voluntary dismissal with prejudice of Defendants Experian and
W&K pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) (docs. 42, 43), be CONSTRUED as
joint, unopposed motions to dismiss pursuant to Fed. R. Civ. P. 21;
2. Both motions be GRANTED; and
3. Defendants Experian and W&K be DISMISSED from this case WITH PREJUDICE.

June 23, 2014

s/ Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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