# Clark v. Cascio

> District Court, M.D. Florida · April 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10109946

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109946

## How later opinions describe it (automated extraction)

- holding Rule 41(a) dismissals are an all-or-nothing proposition

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

NOEL D. CLARK, JR.,

Plaintiff,

v. Case No.: 2:21-cv-811-SPC-NPM

CONNOR CASCIO, SAMANTHA
CASCIO, RAYMOND R. STOBEL
and ZACHARY GILL,

Defendants.
/
ORDER1
Before the Court is pro se Plaintiff Noel Clark’s Notice of Voluntary
Dismissal (Doc. 66). The Court liberally construes Clark’s filings. United
States v. Cordero, 7 F.4th 1058, 1068 n.11 (11th Cir. 2021).
The Notice applies to all Clark’s claims against Defendants Raymond
Stobel, Judge Zachary Gill, and Connor and Samantha Cascio. But this is a
bit more involved than a typical voluntary dismissal. While the Notice applies
to Stobel and Gill, it’s not effective against the Cascios. Still, the Court agrees
dismissal of this entire action without prejudice is proper.

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using
hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties
or the services or products they provide, nor does it have any agreements with them. The
Court is also not responsible for a hyperlink’s availability and functionality, and a failed
hyperlink does not affect this Order.
As to Stobel and Gill, the Notice works because they neither answered
nor moved for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). This

dismissal is effective upon filing and requires no further action by the Court.
Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012). It
makes no difference the Notice applies only to Stobel and Gill. Plains Growers,
Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254 (5th Cir. 1973) (The

“Rule 41(a) notice or motion can be effected against less than all of the
defendants.”).2 What matters is Clark dismissed his whole action as to those
parties. See Fed. R. Civ. P. 41(a)(1)(A)(i); Perry v. Schumacher Grp. of La., 891
F.3d 954, 958 (11th Cir. 2018). So the Notice is effective in part: Clark

dismissed the action against Stobel and Gill without prejudice.
On the other hand, the Notice is inapplicable against the Cascios because
they answered. (Doc. 10); PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299,
1307 (11th Cir. 2016). So the only way for Clark to dismiss under Rule 41(a)(1)

is through a stipulation signed by the Cascios. Fed. R. Civ. P. 41(a)(1)(A)(ii).
Yet they didn’t sign the Notice. Nor does anything in the filing allow the Court

2 See also Williams v. Seidenbach, 958 F.3d 341, 344-45(5th Cir. 2020) (en banc) (“But our
circuit precedents interpret ‘action’ to cover individual defendants—thus allowing plaintiffs
. . . to use Rule 41(a) to dismiss individual defendants.”); Corley v. Long-Lewis, Inc., 965 F.3d
1222, 1226-27 (11th Cir. 2020); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1105 (11th
Cir. 2004); Walker v. Home Point Fin. Corp., No. 8:21-cv-1916-KKM-AAS, 2021 WL 5368863,
at *1-3 (M.D. Fla. Nov. 18, 2021) (explaining possible tension in binding precedent); 9 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2362 (4th ed. April 2022
update). But see, e.g., Taylor v. Brown, 787 F.3d 851, 857-58 (7th Cir. 2015) (holding Rule
41(a) dismissals are an all-or-nothing proposition).
to infer an argument for a Rule 41(a)(2) dismissal. See Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1105 (11th Cir. 2004). Still, considering the

circumstances, the Court can dismiss Clark’s claims against the Cascios.
By dismissing the claims against Stobel and Gill, Clark dropped his
federal claims—leaving only a state-law contract dispute with the Cascios. He
was free to do so. See, e.g., Perry, 891 F.3d at 958. Yet when (as here) all

federal claims are dismissed pretrial, the Court may sua sponte decline
supplemental jurisdiction. 28 U.S.C. § 1367(c); Miller v. City of Fort Myers,
424 F. Supp. 3d 1136, 1152-53 (M.D. Fla. 2020). In these circumstances, the
Eleventh Circuit “strongly encourages” district courts to decline supplemental

jurisdiction. Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999).
Typically, courts also consider “concerns of comity, judicial economy,
convenience, fairness, and the like.” Cook ex rel. Est. of Tessier v. Sheriff of
Monroe Cnty., Fla., 402 F.3d 1092, 1123 (11th Cir. 2005).

After review, the Court employs its discretion and declines to exercise
supplemental jurisdiction. 28 U.S.C. § 1367(c)(3). If the Court must consider
the so-called Gibbs3 factors, they do not favor keeping the remaining claim. See
Sutherland v. Global Equip. Co., 789 F. App’x 156, 162 (11th Cir. 2019)

(holding a district court need not even consider those factors when discharging

3 United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966).
under § 1367(c)(3)); 13D Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3567.3 (3d ed. Apr. 2022 update) (explaining

confusion on applicability of Gibbs factors).
First, judicial economy weighs against exercising supplemental
jurisdiction. Judicial economy is “served when issues of state law are resolved
by state courts.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1288 (11th

Cir. 2002).
Second, convenience points to retaining jurisdiction. The Eleventh
noted, “as far as the parties are concerned, it would be most convenient to try
every claim in a single forum.” Ameritox, Ltd. v. Millennium Laboratories, Inc.,

803 F.3d 518, 539 (11th Cir. 2015).
Third, fairness considerations do not favor jurisdiction here. Each
“litigant who brings supplemental claims in [federal] court knowingly risks the
dismissal of those claims.” Id. Unlike a regular refusal of supplemental

jurisdiction, Clark actually wants his claim dismissed. What’s more, this case
is only six months old. And little to nothing happened here to warrant keeping
it. See Rodriguez v. Page Mech. Grp. Inc., No. 2:20-cv-926-SPC-NPM, 2021 WL
1741018, at *1-2 (M.D. Fla. Mar. 10, 2021).

And fourth, comity cuts against exercising supplemental jurisdiction. “It
is a bedrock principle that ‘needless decisions of state law should be avoided
both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law.” Ameritox, 803
F.3d at 539 (quoting Gibbs, 383 U.S. at 726).
At bottom, the above weighs against exercising supplemental
jurisdiction. So the Court declines it and dismisses without prejudice. Crosby
v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999).
Accordingly, it is now
ORDERED:
1. This action is DISMISSED without prejudice.
2. The Clerk is DIRECTED to enter judgment, deny any pending
motions, terminate all deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on April 20, 2022.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109946. Public record. Not legal advice.