IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
November 20, 2008
DONNA WETHERELL AND ROBIN WETHERELL, INDIVIDUALLY AND AS CLASS ACTION REPRESENTATIVES, PLAINTIFFS,
CLIMATEMASTER, INC., DEFENDANT.
The opinion of the court was delivered by: Reagan, District Judge
On September 6, 2007, Donna Wetherell filed this putative class action against ClimateMaster, Inc. in the Circuit Court of Johnson County, Illinois, alleging negligence, strict liability, breach of the warranties of merchantability and fitness for a particular purpose, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. On October 3, 2007, ClimateMaster removed the case to this United States District Court (Doc. 3). Having been granted leave to do so, Wetherell filed an amended complaint on September 24, 2008 (Doc. 43).
On October 2, 2008, Plaintiffs filed a "notice of voluntary dismissal" of Counts 1 and 2 of their amended complaint without prejudice pursuant to FEDERAL RULE OF CIVIL PROCEDURE 41. However, the Court construed the filing as a motion to voluntarily dismiss (see Doc. 52). As a result, the Court set an objection date of November 14, 2008 for any party wishing to file such an objection. To date, no objections or responses have been filed. Having fully considered the motion, the Court now GRANTS plaintiffs' motion to voluntarily dismiss (Doc. 50).
FEDERAL RULE OF CIVIL PROCEDURE 41(a)(2) provides that where the defendant has answered the complaint or filed a motion for summary judgment, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper."
Accordingly, pursuant to Rule 41, the Court hereby GRANTS the motion (Doc. 50) and DISMISSES Counts 1 and 2 of Plaintiffs' amended complaint without prejudice. Counts 3, 4, and 5 remain pending.
IT IS SO ORDERED.
MICHAEL J. REAGAN United States District Judge
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