The opinion of the court was delivered by: Sue E. Myerscough United States District Judge
Wednesday, 10 August, 2011 03:53:50 PM
Clerk, U.S. District Court, ILCD
This cause is before the Court on Plaintiff James Sarff, Jr.'s Motion to Dismiss Count V pursuant to Federal Rule of Civil Procedure 41(a)(2) (d/e 8). For the reasons that follow, the Motion is DENIED WITH LEAVE TO REFILE.
In April 2011, Plaintiff filed a five count Complaint in state court. Counts I and II asserted negligence and negligent misrepresentation claims, respectively, against Defendant Farmco, LLC. (Farmco). Counts III and IV asserted vicarious liability claims against Defendant Armtech Insurance Services, Inc. (Armtech). Count V sought a declaratory judgment against Defendant Armtech.
In May 2011, Defendants removed the action to federal court on the basis of diversity jurisdiction (see 28 U.S.C. §1332). In July 2011, Defendants filed Answers and Affirmative Defenses.
On July 21, 2011, Plaintiff filed a Motion to Dismiss Count V of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). Defendants have not responded.
Pursuant to Federal Rule of Civil Procedure 41(a)(1), a plaintiff can voluntarily dismiss his lawsuit without a court order in two circumstances: (1) when the notice of dismissal is filed before the opposing party serves either an answer or a motion for summary judgment; or (2) when the plaintiff files a stipulation of dismissal signed by all parties who have appeared. See Fed.R.Civ.P. 41(a)(1)(A)(i), (a)(1)(A)(ii). Where, as here, the opposing party has served an answer, a court order is needed before a plaintiff can voluntarily dismiss his lawsuit. Rule 41(a)(2) provides, in relevant part, as follows:
Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.
Most courts interpret Rule 41(a) as allowing dismissal of entire actions, not one of several claims against a defendant. See Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 776 (7th Cir. 2001) (noting that Rule 41(a)(1)(i) speaks in terms of dismissing an action, not a claim); Loutfy v. R.R. Donnelley & Sons, Co., 148 F.R.D. 599, 601 (N.D. Ill. 1993) (holding that a motion to voluntarily dismiss the federal claim was more properly treated as an amendment under Rule 15(a) and not a dismissal under Rule 41(a)(2)); Becker v. Fitzgerald, 1995 WL 215143 (N.D. Ill. 1995) (concluding that Rule 41(a) only allows for voluntary dismissal of an entire action, in contrast with Rule 41(b) which allows a defendant to move for involuntary dismissal of "an action or of any claim"); but see Cottrell v. Village of Wilmette, 1994 WL 63018 (N. D. Ill. 1994) (granting the plaintiff's motion to dismiss one count pursuant to Rule 41(a)(2) and remanding the remaining counts to state court).
Most recently, in Gatling v. Nickel, F.R.D. , 2011 WL 2579944 (E. D. Wis. 2011), the district court dismissed individual claims--but not the entire action--pursuant to a stipulation of the parties under Rule 41(a)(2). The Gatling court noted the general consensus that Rule 41(a) provides for the voluntary dismissal of an action as opposed to ...