Plaintiffs often file multi-defendant lawsuits only later to decide one or more of the defendants should be dismissed—whether to protect a jurisdictional choice, to effect a settlement, or simply because discovery never bore out the claim. In those cases (or others like them), the plaintiff may be tempted to turn to voluntary dismissal under Rule 41(a) of the Federal Rules of Civil Procedure. Yet as seen in a recent decision from the U.S. District Court for the Eastern District of Kentucky, whether Rule 41(a) provides a remedy may depend on your jurisdiction.
In Stapleton v. Vicente, No. 15-504, 2019 WL 2494564 (June 14, 2019), the plaintiffs sued multiple defendants before realizing that one of the named parties was not the broker of the underlying transaction. The plaintiffs notified the court of their voluntary dismissal under Rule 41(a), but the court held that Rule 41(a) would not apply because the Sixth Circuit interprets that rule’s use of the term "action" to mean the "entire controversy." Because Rule 41(a) "does not allow a court to dismiss some, but not all, of the defendants in a single case," the motion for voluntary dismissal was improper. Nevertheless, the court found that dismissal was proper—albeit under Rule 21 governing the adding or dropping of parties.
To avoid repeating the procedural misstep from Stapelton, attorneys considering using Rule 41(a) to dismiss defendants from an “action” would be wise to determine how their jurisdiction interprets that term.
Victoria L. Creta is a summer clerk in the Charleston, West Virginia, office of Spilman Thomas & Battle, PLLC. She is a 3L at the University of South Carolina School of Law.