Filed: Aug. 15, 2014
Latest Update: Aug. 15, 2014
Summary: ORDER 1 SHERIPOLSTER CHAPPELL, District Judge. This matter comes before the Court on the Defendant, Bourke Gorman's Notice of Voluntary Dismissal without Prejudice Construed as a Motion to Voluntarily Dismiss Count II Counterclaim for Civil Damages against Plaintiff and Count III Cross-Claim Against Thomas E. Murphy for Civil Damages ( Doc. #42 ) filed on July 22, 2014. The Plaintiff voluntarily dismisses without prejudice Counts II and III but states that Count I, the Plaintiff's Counter Cl
Summary: ORDER 1 SHERIPOLSTER CHAPPELL, District Judge. This matter comes before the Court on the Defendant, Bourke Gorman's Notice of Voluntary Dismissal without Prejudice Construed as a Motion to Voluntarily Dismiss Count II Counterclaim for Civil Damages against Plaintiff and Count III Cross-Claim Against Thomas E. Murphy for Civil Damages ( Doc. #42 ) filed on July 22, 2014. The Plaintiff voluntarily dismisses without prejudice Counts II and III but states that Count I, the Plaintiff's Counter Cla..
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ORDER1
SHERIPOLSTER CHAPPELL, District Judge.
This matter comes before the Court on the Defendant, Bourke Gorman's Notice of Voluntary Dismissal without Prejudice Construed as a Motion to Voluntarily Dismiss Count II Counterclaim for Civil Damages against Plaintiff and Count III Cross-Claim Against Thomas E. Murphy for Civil Damages (Doc. #42) filed on July 22, 2014. The Plaintiff voluntarily dismisses without prejudice Counts II and III but states that Count I, the Plaintiff's Counter Claim and Cross-Claim for Declaratory Judgment brought against Plaintiff/Counter-Defendant and Cross Defendants remains in effect.
Gorman seeks to voluntarily dismiss Counts II and III without prejudice; however, Gorman does not present the Court with any law or reference to the Federal Rules as grounds for the Court to dismiss the claims. Federal Rule of Civil Procedure 41 allows a plaintiff to dismiss an entire action but not a single count in a multi-count action as desired here. Campbell v. Altec Indus., Inc., 605 F.3d 839, 841 n.1 (11th Cir. 2010) ("Rule 41 allows a plaintiff to dismiss all of his claims against a particular defendant, its text does not permit plaintiffs to pick and choose, dismissing only particular claims within an action.") (citing Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004)). Thus, the use of Rule 41 would not be proper here because all Parties will remain in the case despite the dismissal of Counts II and III.
The Eleventh Circuit continued that a plaintiff wishing to eliminate particular claims or issues from the action should amend the complaint under Fed. R. Civ. P. 15(a) rather than dismiss under Rule 41. Id. Under Rule 15(a), Gorman could file an amended complaint with Count I as the only remaining claim. Thus, the Notice to Dismiss Counts II and III construed as a motion to voluntarily dismiss is deemed improper and is due to be denied without prejudice. Gorman is given leave to file an amended complaint under Rule 15(a) without Counts II and III.
Accordingly, it is now
ORDERED:
The Defendant, Bourke Gorman's Notice of Voluntary Dismissal without Prejudice Construed as a Motion to Voluntarily Dismiss Count II Counterclaim for Civil Damages against Plaintiff and Count III Cross-Claim Against Thomas E. Murphy for Civil Damages (Doc. #42) is DENIED without prejudice.
(1) The Defendant/Counter-Plaintiff Borke Gorman is given leave to file an Amended Complaint dropping Counts II and III.
(2) Gorman has up to and including August 25, 2014, to file his amended complaint.
DONE and ORDERED
