Jenkins v. Miller et al

Filing 711

OPINION AND ORDER: granting as unopposed 705 MOTION to Lift Stays and MOTION For Order Directing Parties to Propose a Joint Modified Discovery Schedule/Order and parties to file a joint modified discovery schedule within 30 days; accepting the 706 NOTICE of Dismissal of Lisa Miller Without Prejudice, denying as moot 706 JOINT MOTION to Dismiss Lisa Miller Without Prejudice and Lisa Miller is dismissed from the case without prejudice. Signed by Judge William K. Sessions III on 4/18/2023. (law)

Case 2:12-cv-00184-wks Document 711 Filed 04/19/23 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Janet Jenkins,

)
)
Plaintiff,
)
)
v.
)
)
Kenneth L. Miller, Lisa Ann
)
Miller, Timothy D. Miller,
)
Response Unlimited, Inc.,
)
Philip Zodhiates, Victoria
)
Hyden, Linda M. Wall,
)
Matthew D. Staver, Rena M.
)
Lindevaldsen, Liberty Counsel )
LLC,
)
)
Defendants.
)

Case No. 2:12-cv-184

OPINION AND ORDER
Plaintiff Janet Jenkins moves the Court to lift any current
stays (ECF No. 705), to order the parties to submit a joint
modified discovery schedule (ECF No. 705), and to dismiss
Defendant Lisa Miller without prejudice (ECF No. 706).
first two motions are granted as unopposed.

The

This case is no

longer stayed, and the parties shall file a joint modified
discovery schedule within 30 days.
The motion to dismiss Lisa Miller, alternatively filed as a
notice of dismissal, is opposed.

Plaintiff reports that she has

settled all claims against Lisa Miller and seeks to dismiss her
from the case without prejudice.

Defendants Liberty Counsel,

Inc. and Rena Lindevaldsen (“Defendants”) object, arguing in

Case 2:12-cv-00184-wks Document 711 Filed 04/19/23 Page 2 of 6

part that dismissal of a single party requires their consent and
that they are entitled to review the settlement documents.

For

reasons set forth below, the Court disagrees and accepts the
notice of dismissal without prejudice.
Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), a
plaintiff may dismiss an “action” without a court order if the
opposing party has not served either an answer or a motion for
summary judgment.

Here, Lisa Miller has not served an answer or

filed for summary judgment.
pending against her.

There are also no counterclaims

Plaintiff has thus filed a notice of

dismissal pursuant to Rule 41(a)(1)(A)(i).

Plaintiff also moves

the Court in the alternative to dismiss Lisa Miller under Rule
41(a)(2), which allows a plaintiff to request an order of the
Court dismissing an opposing party “on terms that the court
considers proper.”

Fed. R. Civ. P. 41(a)(2).

Dismissal under

either subsection of Rule 41 is generally without prejudice.
See Fed. R. Civ. P. 41(a)(1)(B) (“Unless the notice or
stipulation states otherwise, the dismissal is without
prejudice.”); Fed. R. Civ. P. 41(a)(2) (“Unless the order states
otherwise, a dismissal under this paragraph (2) is without
prejudice.”).
Defendants oppose Plaintiff’s filings, arguing that Rule 41
only provides for dismissal of the entire “action” and not
individual parties or claims.

For support, they rely on Harvey
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Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (2d Cir.
1953), wherein the Second Circuit did indeed hold that Rule 41
applies to the dismissal of an entire case, and not individual
parties or claims.

Id. at 108.

In the seventy years since

Harvey Aluminum, however, the Second Circuit has called the case
into question and numerous lower courts have concluded that its
holding is no longer persuasive authority.

See Wakefield v. N.

Telecom. Inc., 769 F.2d 109, 114 n.4 (2d Cir. 1985)
(acknowledging that Harvey Aluminum “has been criticized and is
now against the weight of the authority”); Guigliano v. Danbury
Hosp., 396 F. Supp. 2d 220, 224 (D. Conn. 2005) (“district
courts have declined to view [Harvey Aluminum] as binding, even
though it has not been explicitly overruled”); Mut. Ben. Life
Ins. Co. in Rehab, v. Carol Mgmt. Corp., No. 93 Civ. 7991 (LAP),
1994 WL 570154, at *1 (S.D.N.Y. Oct. 13, 1994) (noting that
Harvey Aluminum is “no longer persuasive authority on the
issue”).
At most, Harvey Aluminum has been limited to its facts, as
the Second Circuit reasoned that since the “the merits of the
controversy were squarely raised” voluntary dismissal was not
appropriate.

203 F.2d at 108.

Although the instant case was

filed several years ago, there has been little merits
consideration of the claims brought against Lisa Miller.
Accordingly, the reasoning in Harvey Aluminum does not apply.
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See Thorp v. Scarne, 599 F.2d 1169, 1176 (2d Cir. 1979) (holding
“that at least in cases falling short of the extreme exemplified
by Harvey Aluminum, notices of dismissal filed in conformance
with the explicit requirements of [former] Rule 41(a)(1)(i) are
not subject to vacatur”).
As noted above, courts in this Circuit now widely apply the
majority rule, which holds that Rule 41 allows a plaintiff to
dismiss individual parties without dismissing the entire case.
See, e.g., Blaize-Sampeur v. McDowell, No. 05 Civ. 4275 (JFB)
(ARL), 2007 WL 1958909, at *2 (E.D.N.Y. June 29, 2007)
(“[D]istrict courts within the Second Circuit have ... adopted
the approach of the majority of courts in other circuits—that
is, that Rule 41(a) does not require dismissal of the action in
its entirety.”) (citing cases); Morron v. City of Middletown,
No. 05 Civ 1705 (JCH), 22006 WL 1455607, at *1 (D. Conn. May 23,
2006) (“[W]here a party has not yet served an answer or a motion
for summary judgment, a plaintiff has the unilateral right to
dismiss an action against a particular defendant.”).

Consistent

with that majority position, the Court holds that Rule 41
permits the dismissal of an individual defendant by notice of
dismissal under Rule 41(a)(1)(A)(i) even when co-defendants
remain in the case.
Defendants further object to dismissal under Rule
41(a)(1)(A)(i) because other defendants have served Plaintiff
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with answers.

Defendants argue that Rule 41(a)(1)(A)(ii)

therefore applies and that a “stipulation of dismissal signed by
all parties who have appeared” is required.
41(a)(1)(A)(ii).

Fed. R. Civ. P.

This argument again runs contrary to

prevailing case law.

See, e.g., Madsen v. Park City, 6 F. Supp.

2d 938, 943 (N.D. Ill. 1998) (“In a multiple defendant case, it
is permissible to voluntarily dismiss just some of the
defendants ... and the fact that some of the defendants have
already answered does not preclude invoking this rule as to
other defendants.”); Sheldon v. Amperex Elec. Corp., 52 F.R.D.
1, 9 (E.D.N.Y.), aff’d, 449 F.2d 146 (2d Cir. 1971) (“Service of
a notice of motion for summary judgment by one or more of
several defendants (or of an answer, for that matter), does not
foreclose the plaintiff from dismissing as to any other
defendant who has not served notice of such a motion.”); Terry
v. Pearlman, 42 F.R.D. 335, 337 (D. Mass. 1967) (quoting 5
Moore’s Federal Practice 1088: “[w]here notice of dismissal is
filed under Rule 41(a)(1) with regard to one of several
defendants, who has served neither an answer nor a motion for
summary judgment, dismissal should not be precluded by the fact
that other defendants have served an answer or a motion for
summary judgment”).
Because the Court finds that a notice of dismissal under
Rule 41(a)(1) was sufficient, the Court need not address the
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reply arguments offered by Plaintiff and Defendant Miller under
Federal Rules of Civil Procedure 21 or 41(a)(2).

Moreover, the

Court may not exercise any discretion since dismissal by notice
“is a matter of right running to the plaintiff and may not be
extinguished or circumscribed by adversary or the court....
alpha and omega was the doing of the plaintiff alone.”

Its

Thorp,

599 F.2d at 1176 (quoting American Cyanamid Co. v. McGhee, 317
F.2d 295, 297 (5th Cir. 1963)).

Lisa Miller is therefore

dismissed from the case without prejudice.
For the reasons set forth above, the notice of dismissal is
accepted, the joint motion to dismiss (ECF No. 706) is denied as
moot, and Lisa Miller is dismissed from the case without
prejudice.

The motion to lift stays and motion to order the

parties to file a proposed modified discovery schedule (ECF No.
705) are granted, and such proposed schedule shall be filed
within 30 days.
DATED at Burlington, in the District of Vermont, this 18th
day of April, 2023.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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