MERENESS
v.
SUN LIFE ASSURANCE COMPANY OF CANADA
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The court construed the plaintiff's notice of voluntary dismissal of a count as a motion for leave to amend the complaint.
The plaintiff filed a notice of voluntary dismissal for Count II, citing Rule 41(a)(1). The court noted that the proper procedure to dismiss a single …
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BRETT MERENESS, in his capacity as Personal Representative of the Estate of Jacquelyn Ann Mereness and in his capacity as next of kin to Jacquelyn Ann Mereness, Plaintiff, V. SUN LIFE ASSURANCE COMPANY OF CANADA, a Foreign Corporation, Defendant. Case No. 3:24-cv-802-TJC-PDB
ORDER
THIS CASE is before the Court on Plaintiffs Notice of Voluntary Dismissal of Count II – Breach of Fiduciary Duty, Doc. 22. Although the notice cites Rule 41(a)(1) Fed. R. Civ. P. as authority to dismiss Count II, the appropriate mechanism to dismiss a single count is to seek leave to file an amended complaint. See Campbell v. Altec Indus., Inc., 605 F. 3d 839, 841 n.1 (11th Cir. 2010) (“A plaintiff wishing to eliminate particular claims or issues from the action should amend the complaint under [Federal] Rule [of Civil Procedure] 15(a) rather than dismiss under Rule 41(a).") (quoting Klay v. United Healthgroup, Inc., 376 F. 3d 1092, 1106 (11th Cir. 2004)).
Accordingly, the Court will construe the notice as a motion for leave to amend and it is hereby
ORDERED: 1. No later than December 20, 2024, Plaintiff shall file a third amended complaint. 2. No later than January 10, 2025, Defendant shall file its answer to the third amended complaint. 3. Defendant Sun Life Assurance Company of Canada's Motion to Dismiss Count II of Plaintiffs Second Amended Complaint, Doc. 20, is DENIED as moot.
DONE AND ORDERED in Jacksonville, Florida the 2nd day of December, 2024.
TIMOTHY J. CORRIGAN Senior United States District Judge
ddw Copies: Counsel of record
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Leonard J. Klay, M.D. v. United Healthgroup, Inc., 376 F.3d 1092 (11th Cir. 2004)
- Campbell v. Altec Indus., Inc., 605 F.3d 839 (11th Cir. 2010)