IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
December 8, 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 December 3, 2008, the parties filed a stipulation to voluntarily dismiss Count 3 without prejudice (Doc. 55). Though this is a putative class action, no class has been certified in this case. Therefore, FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1) governs this dismissal, rather than Rule 23(e).
Rule 41(a)(1)(A)(ii) provides that a plaintiff may voluntarily dismiss an action "by filing a stipulation of dismissal signed by all parties who have appeared." Plaintiffs submitted a stipulation of dismissal signed by Troy Doles, counsel for Plaintiffs, and Kyle Bogdan, counsel for Defendants.
Pursuant to the parties' stipulation (Doc. 55), the Court hereby DISMISSES Count 3 without prejudice.
Additionally, the Court notes that Counts 1 and 2 were dismissed without prejudice on November 20, 2008 (Doc. 54). Accordingly, the Court hereby DENIES AS MOOT Defendant's motion to dismiss Counts 1, 2, and 3 (Doc. 46).
IT IS SO ORDERED.
MICHAEL J. REAGAN United States District Judge
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