Filed: Dec. 05, 2014
Latest Update: Dec. 05, 2014
Summary: ORDER 1 SHERI POLSTER CHAPPELL, District Judge. This matter comes before the Court on the Plaintiff, Jody Holland's Stipulation of Dismissal as to Defendants Dale Scott and William Wise, Sheriff of Desoto County, Florida, as to Counts I, V, and VI ( Doc. #43 ) filed on September 2, 2014. The Plaintiff informs the Court that the Plaintiff Holland dismisses all claims against the Defendant Dale Scott and some of the claims against Sheriff Wise. Pursuant to Fed. R. Civ. P. 54(b) , "when multi
Summary: ORDER 1 SHERI POLSTER CHAPPELL, District Judge. This matter comes before the Court on the Plaintiff, Jody Holland's Stipulation of Dismissal as to Defendants Dale Scott and William Wise, Sheriff of Desoto County, Florida, as to Counts I, V, and VI ( Doc. #43 ) filed on September 2, 2014. The Plaintiff informs the Court that the Plaintiff Holland dismisses all claims against the Defendant Dale Scott and some of the claims against Sheriff Wise. Pursuant to Fed. R. Civ. P. 54(b) , "when multip..
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ORDER1
SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court on the Plaintiff, Jody Holland's Stipulation of Dismissal as to Defendants Dale Scott and William Wise, Sheriff of Desoto County, Florida, as to Counts I, V, and VI (Doc. #43) filed on September 2, 2014.
The Plaintiff informs the Court that the Plaintiff Holland dismisses all claims against the Defendant Dale Scott and some of the claims against Sheriff Wise. Pursuant to Fed. R. Civ. P. 54(b), "when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay." Since Holland has dismissed all of the claims against the Defendant Dale Scott, the Court finds no just reason to delay the entry of a final judgment as to Dale Scott.
In regards to Sheriff Wise, Federal Rule of Civil Procedure 41(a)(1)(A), allows a plaintiff to dismiss a case without a court order. The Rule reads in pertinent part:
Subject to Rules 23(e), 23.1, 23.2 and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) A notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) A stipulation of dismissal signed by all parties who have appeared.
Fed. R. Civ. P. 41(a)(1)(A) (emphasis added). However, Rule 41 only 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. IberiaBank v. Coconut 41, LLC, 984 F.Supp.2d 1283, 95 (M.D. Fla. 2013). "A plaintiff wishing to eliminate particular claims or issues from the action should amend the complaint under Rule 15(a) rather than dismiss under Rule 41(a)." Binns v. Caesars Entertainment Corp., 2014 WL 5378227, *1 (M.D. Fla. October 21, 2014) (citing J.C. Gibson Plastering Co., Inc. v. XL Specialty Ins. Co., 2007 WL 2128183, *1 (M.D. Fla. July 25, 2007)).
In this instance, the Plaintiff wants to drop counts I, V, and VI against Sheriff Wise, but still leave Count VII pending against him. Under the Rules, the Plaintiff cannot dismiss only some of the claims against Wise. Therefore, the Stipulation to Dismiss Sheriff Wise is denied.
Accordingly, it is now
ORDERED:
Jody Holland's Stipulation of Dismissal as to Defendants Dale Scott and William Wise, Sheriff of Desoto County, Florida, as to Counts I, V, and VI (Doc. #43) is GRANTED in part and DENIED in part.
1. The Complaint against the Defendant Dep. Dale Scott is hereby DISMISSED with prejudice. The Clerk is directed to enter judgment accordingly, terminate any previously scheduled deadlines and pending motions in regard to Dale Scott only. Each Party will bear their own attorney's fees and costs.
2. Jody Holland's Stipulation of Dismissal as to Defendant, William Wise, Sheriff of Desoto County, Florida, as to Counts I, V, and VI is DENIED without prejudice.
DONE and ORDERED.
