“[Fed. R. Civ. P.] 41 allows a plaintiff to dismiss all of his claims against a particular defendant . . . .”
How later courts described this case
- “[Fed. R. Civ. P.] 41 allows a plaintiff to dismiss all of his claims against a particular defendant . . . .”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARBARIETTA TURNER-PUGH, )
Ph.D., et al., )
)
Plaintiffs, )
)
vs. ) CIV. ACT. NO. 1:23-cv-294-TFM-N
)
MONROE COUNTY BOARD OF )
EDUCATION, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
On August 16, 2024, the Magistrate Judge entered a Report and Recommendation which
recommends: (1) The Plaintiff’s response brief (Doc. 26) be treated as a Rule 41(a)(1)(A)(i) notice
of voluntary dismissal of all claims against the Defendant Monroe County School System, (2) the
Defendants’ motion to dismiss (Doc. 21) be granted in part, denied in part, and found moot in part.
See Doc. 28. Plaintiffs timely filed objections (Doc. 29) and Defendants timely replied (Doc. 31).
The Report and Recommendation is now ripe for review.
The Plaintiffs’ objections are only as to one specific matter in the Report and
Recommendation – that is that Defendant Monroe County Board of Education is immune from
liability for the breach of contract claim (Count 5). Doc. 29. Therefore, the Court applies a de
novo standard of review to that portion of the recommendation and a clearly erroneous standard to
the remainder. In reviewing the objection, Plaintiff does not offset the well-reasoned analysis of
the Magistrate Judge. Therefore, for the reasons stated in the Report and Recommendation and in
the response to objections filed by the Defendants (Doc. 31), the objections are OVERRULED.
The Court does note one addition to the Report and Recommendation. The Magistrate
Judge recommends that Plaintiffs’ response brief (Doc. 26) be treated as a Rule 41(a)(1)(A)(i)
notice of voluntary dismissal of all claims against the Monroe County School System, effective
upon its filing. See Doc. 28 at 4-5, 25-26. The Court does not find this to be clearly erroneous but
does note some uncertainty in the application of Rule 41(a)(1) in the Eleventh Circuit.
The Rules of Civil Procedure permit a plaintiff to voluntarily dismiss an action without an
order of the court “by filing a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment” or “a stipulation signed by all parties who have appeared.”
FED. R. CIV. P. 41(a)(1)(A). A request to dismiss an action requires a court order and dismissal by
terms the court considers “proper” if Fed. R. Civ. P. 41(a)(1) does not apply. FED. R. CIV. P.
41(a)(2).
In the situation at hand, Plaintiffs do not cite Rule 41, they do not explicitly ask for or
indicate dismissal, but merely concede the point that all Monroe County School System is not a
distinct legal entity subject to suit and all references should be understood to be claims against the
Monroe County School Board. Doc. 26 at 6. That concession is in Plaintiffs’ response and not a
standalone document which causes the undersigned pause. Unlike the caselaw cited by the
Magistrate Judge, this is not styled as a motion to dismiss, but rather is a concession statement
embedded in the motion to dismiss.
As Plaintiffs did not object to the Report and Recommendation, the Court assumes that
they agree with the Magistrate Judge in the application of Rule 41(a)(1)(A)(i) as no answer or
summary judgment motion has been filed. The Court applies the clearly erroneous standard and
cannot find that this determination is clear error. However, as the undersigned does have some
concerns about the application, the Court adds these alternative holdings in the event Rule 41(a)(1)
is not applicable in such a situation.
One could approach this situation three ways: (1) the manner in which the Magistrate Judge
did in construing the document as one under Rule 41(a)(1)(A)(i); (2) construing the request as one
brought under Rule 41(a)(2); or (3) simply granting the motion to dismiss as to the Monroe County
School System. The main difference between options 1 and 2 is whether the document is
immediate and self-effectuating which is the case under Rule 41(a)(1). See Estate of West v. Smith,
9 F.4th 1361, 1367-1368 (11th Cir. 2021) (noting that a Rule 41(a)(1) is a self-executing rule that
is effective immediately, that any court order is a nullity, and divests the Court of jurisdiction.).
Whereas Rule 41(a)(2) requires Court review and an approval.
However, out of an abundance of caution, the Court also notes that Options 2 and 3 have
the same effect albeit by using a different path. In the event that Rule 41(a)(1)(A)(i) would not
apply, the Court could also consider Options 2 and 3 which have the same ultimate effect –
dismissal of the Monroe County School System.
The Court has the authority to dismiss all claims against a defendant under Fed. R. Civ. P.
41 even if there are other defendants in the case. Klay v. United Healthgroup, Inc., 376 F.3d 1092,
1106 (11th Cir. 2004) (“[Fed. R. Civ. P.] 41 allows a plaintiff to dismiss all of his claims against
a particular defendant . . . .”); see also Plain Growers, Inc. ex rel. Florists’ Mut. Ins. Co. v. Ickes-
Braun Glasshouses, Inc., 474 F.2d 250, 254 (5th Cir. 1973) (“There is little merit in the argument
that the court could not dismiss the action as to less than all defendants upon motion [under (a)(2)]
. . . .”); Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting
all decisions of the former Fifth Circuit announced prior to October 1, 1981, as binding precedent
in the Eleventh Circuit). In Rosell v. VMSB, LLC, the Eleventh Circuit reiterated the point that
Rule 41(a) allows a district court to dismissal claims against a particular defendant because “an
‘action’ can refer to all claims against one party. 67 F.4th 1141, 1144 n. 2 (11th Cir. 2023) (citing
Klay, 376 F.3d at 1106). However, in the situation at hand, similar to the issues with Option 1,
there is not an explicit request to dismiss this defendant, but rather a concession to a legal point
raised in the motion to dismiss. However, in the event the request can be construed as a motion to
dismiss, the Court would certainly grant it under Rule 41(a)(2).
In the alternative to the extent that the response (Doc. 26) could not be construed as a
voluntary dismissal under Rule 41(a)(1)(A)(i), the Court would also have granted the Plaintiff’s
under Rule 41(a)(2) or ultimately just granted the motion to dismiss as to that defendant.
Regardless, the claims against Monroe County School System are dismissed without prejudice.
On conclusion, after due and proper consideration of all portions of this file deemed
relevant to the issues raised, and a de novo determination of those portions of the Recommendation
to which objection is made, the Recommendation of the Magistrate Judge (Doc. 28) is ADOPTED
as the opinion of this Court and the Defendants’ motion to dismiss (Doc. 21) is GRANTED in
part, DENIED in part, and DENIED in part as moot. Accordingly, it is ORDERED as follows:
(1) The motion is DENIED as moot as it relates to the Monroe County School System
who is dismissed without prejudice from this action at Plaintiff’s concession/request.
(2) The motion is GRANTED as to:
a. Fictitious Defendants A-Z and the reference to these fictitious defendants is
stricken and the parties are DISMISSED without prejudice;
b. The state law claims (Count III – Defamation and Count V – Breach of
Contract) asserted against the Monroe County Board of Education as
DISMISSED without prejudice;
c. The claims asserted against Shehan in his individual capacity in Counts I (Title
VII), II (Title IX), and VIII (Equal Pay Act) which are DISMISSED with
prejudice.
(3) The motion to dismiss is partially construed as a Rule 12(f) motion to strike which is
GRANTED
a. As to the official-capacity claims against Shehan in Counts I, II, and VIII, such
that they are STRICKEN as redundant;
b. As to the demand for punitive damages made in Count I its entirety, and as to
the punitive damages demands in Counts III and V to the extent they are
asserted against the Board and against Shehan in his official capacity, such that
they are STRICKEN as immaterial and/or impertinent.
(4) The motion to dismiss is otherwise DENIED.
In light of this ruling, it is further ORDERED that the issuance of a scheduling order shall
be referred to the Magistrate Judge.
DONE and ORDERED this 16th day of September, 2024.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE