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Eaton v. American Optical Corp.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 3, 2007

RICHARD D. EATON, PLAINTIFF,
v.
AMERICAN OPTICAL CORP., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Herndon, District Judge

ORDER

Before the Court is a Stipulation of Dismissal Without Prejudice (Doc. 51), filed by the parties to this action who have been served. FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)(ii) provides that "an action may be dismissed by the plaintiff without order of court . . . (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action." In this case, the Stipulation of Dismissal Without Prejudice (Doc. 51) has been signed by representative counsel for all parties who have appeared in the action and thus, currently before the Court. Therefore, in accordance with Rule 41(a)(1)(ii), the Stipulation, by itself, has the effect of dismissing without prejudice Plaintiff's claims against the signatory Defendants.

Additionally, defendants Mine Safety Appliances Company, American Optical Corporation, Flexo Products, Inc., and 3M Company sought leave to file a Joint Third-Party Complaint (Doc. 45), which was granted by the Court (Doc. 48). Defendants had yet to file such third-party complaint when the Stipulation of Dismissal was filed. However, the Stipulation states that Defendants also wish to voluntarily dismiss their third-party complaint pursuant to Rule 41(a)(1)(i), which allows "an action [to be] dismissed by the plaintiff without order of court . . . by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." Rule 41(c) adds "the provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim." Such is the case here, as the third-party complaint has not yet been filed nor has the third-party defendant been served, filed an answer or motion for summary judgment. Therefore, the Third-Party Plaintiffs' notice of dismissal, by itself, has the effect of dismissing without prejudice the Third-Party Plaintiffs' claims against Third-Party Defendants.*fn1

Accordingly, the Court ACKNOWLEDGES the Stipulation of Dismissal (Doc. 51). As such, Plaintiffs' claims are hereby DISMISSED WITHOUT PREJUDICE, as are any potential third-party claims by Defendants. The Clerk is instructed to close the case file.

IT IS SO ORDERED.

David R Herndon United States District Court


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