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Kessler v. Wal-Mart Stores

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


June 17, 2009

BRENT KESSLER, PLAINTIFF,
v.
WAL MART STORES, INC., DEFENDANT/THIRD PARTY PLAINTIFF,
v.
TRIMAS CORPORATION AND CEQUENT CONSUMER PRODUCTS, INC., D/B/A HIGHLAND GROUP INDUSTRIES, ACE AMERICAN INSURANCE COMPANY, GREAT DAY, INC., AND NEW DAY ENTERPRISES, INC. F/K/A API OUTDOORS, INC., AND INTEGRATED SAFETY, LLC, D/B/A FALL GUY, THIRD PARTY DEFENDANTS.

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

MEMORANDUM AND ORDER

On September 14, 2007, Plaintiff filed the above-captioned action against Wal-Mart Stores, Inc. (Doc. 2). After this Court granted leave to do so, Wal-Mart filed a third-party complaint against various third-party defendants (Doc. 23).*fn1

Defendant/Third-Party Plaintiff Wal-Mart recently filed three motions to voluntarily dismiss the following third-party defendants without prejudice and with leave to re-file within one year, with all costs having been paid: TriMas Corporation and Cequent Consumer Products, Inc. d/b/a Highland Group Industries (Doc. 85), ACE American Insurance Company (Doc. 89), and Great Day, Inc. and New Day Enterprises, Inc. f/k/a API Outdoors, Inc. (Doc. 93).

The Court permitted any parties wishing to respond or object to do so no later than June 15, 2009 (Docs. 86, 91, & 95). No parties filed any objections. Great Day and New Day filed a motion supporting Wal-Mart's motion to voluntarily dismiss the third-party defendants (Doc. 96). Additionally, TriMas, Cequent, and ACE American filed memoranda indicating that they do not object to the voluntary dismissal of these parties (Doc. 98, 103).*fn2

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."

Having fully considered Wal-Mart's motions, the Court hereby GRANTS the motions to voluntarily dismiss pursuant to Rule 41 (Docs. 85, 89, and 93) and DISMISSES the following third-party defendants: TriMas Corporation and Cequent Consumer Products, Inc. d/b/a Highland Group Industries, ACE American Insurance Company, and Great Day, Inc. and New Day Enterprises, Inc. f/k/a API Outdoors, Inc. Each of these third-party defendants are DISMISSED without prejudice and with leave to re-file within one year, with all costs having been paid. However, the Court takes no position as to whether any such re-filing of this action against these third-party Defendants will in fact be timely.

Because Great Day and New Day's motion in support of Wal-Mart's motion seeks the same relief, the Court GRANTS their motion to dismiss as well (Doc. 96).

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge


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