LARSON
v.
SELECTIVE INSURANCE COMPANY OF THE SOUTHEAST
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A plaintiff cannot voluntarily dismiss fewer than all counts of a complaint under Federal Rule of Civil Procedure 41(a)(1) or 41(a)(2).
Plaintiff filed a stipulation to dismiss only Count II of her complaint. The defendant had not yet filed an answer or motion for summary judgment.…
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This matter comes before the Court on plaintiff’s Stipulation of Dismissal of Only Count II in the Complaint (Doc. #23) filed on June 4, 2024.
Federal Rule of Civil Procedure 41(a)(1) does not permit dismissal of some, but not all, counts of a complaint. A plaintiff may dismiss “an action” pursuant to Rule 41(a)(1) without a court order “before the opposing party serves either an answer or motion for summary judgment” or by “a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(i), (ii). While the stipulation satisfies the “all parties who have appeared” requirement of Rule 41(a)(1)(A)(ii) [fn 1], it is ineffective because it does not agree to dismiss the entire “action.” “A plain reading reveals that the Rule does not authorize the voluntary dismissal of individual claims; rather, the Rule requires that a plaintiff dismiss the entire action.” In re Esteva, 60 F. 4th 664, 675 (11th Cir. 2023). The same is true of Rule 41(a)(2), which allows dismissal of an "action" at plaintiff’s request by court order. Rosell v. VMSB, LLC, 67 F. 4th 1141, 1144 (11th Cir. 2023) (In the Eleventh Circuit, “a Rule 41(a)(2) dismissal can only be for an entire action, and not an individual claim.") See also City of Jacksonville v. Jacksonville Hosp. Holdings, L.P., 82 F. 4th 1031, 1039 (11th Cir. 2023).
As the parties are only seeking to dismiss Count II, the voluntary dismissal will be denied. Plaintiff may seek leave to amend the Complaint pursuant to Fed. R. Civ. P. 15(a).
Accordingly, it is now
ORDERED:
Plaintiff’s Stipulation of Dismissal of Only Count II in the Complaint (Doc. #23) is DENIED without prejudice to filing a motion for leave to amend the complaint.
DONE and ORDERED at Fort Myers, Florida, this 5th day of June 2024.
JOHN E. STEELE
SENIOR UNITED STATES DISTRICT JUDGE
Copies: Counsel of Record
[fn 1]: See City of Jacksonville v. Jacksonville Hosp. Holdings, L.P., 82 F. 4th 1031, 1039 (11th Cir. 2023).
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Citator
Authorities Cited
- City of Jacksonville v. Jacksonville Hospitality Holdings, L.P., 82 F.4th 1031 (11th Cir. 2023)
- Rosell v. VMSB, LLC, 67 F.4th 1141 (11th Cir. 2023)
- Esteva v. UBS Fin. Servs. Inc., 60 F.4th 664 (11th Cir. 2023)