Opinion

Mills v. Cvitkovich

Court
District Court, S.D. Ohio
Filed
Oct 9, 2024
Cited by
0 cases
Authority
More cited than 31.8%

The opinion

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CRAIG MILLS, :

:

Plaintiff, : Case No. 3:23-cv-280

:

v. : Judge Thomas M. Rose

:

MATTHEW CVITKOVICH, et al., :

:

Defendants. :

______________________________________________________________________________

ENTRY AND ORDER ON STIPULATION OF DISMISSAL WITHOUT

PREJUDICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE

41(a)(1) (DOC. NO. 26)

______________________________________________________________________________

Presently before the Court is the Stipulation of Dismissal Without Prejudice Pursuant to

Federal Rule of Civil Procedure 41(A)(1) (“Stipulation”) (Doc. No. 26). The Stipulation purports

to dismiss without prejudice, Defendant Sheriff Scott Anger, Defendant Deputy Sheriff James

Hughes, and Defendant Greene County, Ohio Board of County Commissioners (“Defendants”).

(Id.)

The Parties voluntary dismissal under Fed. R. Civ. P. 41(A)(1) is flawed because Rule 41

may only be used to dismiss an entire action, not individual defendants. English v. Equifax Info.

Servs., LLC, No. 1:24-cv-240, 2024 U.S. Dist. LEXIS 134657, at *1-2, 2024 WL 3581052 (S.D.

Ohio July 30, 2024); Bernard v. City of Cleveland, No. 1:21-cv-1103, 2022 U.S. Dist. LEXIS

171048, at *3, 2022 WL 4367655 (N.D. Ohio Sep. 21, 2022). The Sixth Circuit has held, “Rule

41(a)(1) provides for the voluntary dismissal of an action not a claim; the word ‘action’ as used in

the Rules denotes the entire controversy, whereas claim refers to what has traditionally been

termed cause of action.” Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961)

(quotations and citation omitted). “A plaintiff seeking to dismiss only one defendant from an

action must move the Court to do so under Rule 21.” Sheet Metal Workers’ Nat’l Pension Fund

Bd. of Trs. v. Courtad, Inc., No. 5:12-cv-7238, 2013 U.S. Dist. LEXIS 105098, 2013 WL 3893556,

at *4 (N.D. Ohio July 26, 2013) (citing Taylor, 286 F.2d at 785).

Under Fed. R. Civ. P. 21, “[o]n motion or on its own, the court may at any time, on just

terms, add or drop a party.” “The decision to drop a party is within the discretion of the court.”

Grant v. David’s Constr., 2023 WL 5673681, at *1 (M.D. Tenn. Auf. 31, 2023) (citing Carden v.

Klucznik, 775 F. Supp. 2d 247, 251 (D. Mass. 2011)). “When evaluating a motion for dismissal

under Rule 21, courts should consider Rule 41 standards as guidance for analyzing potential

prejudice to the non-movants.” Murray Enery Corp. v. Cassidy, Cogan, Chappel, and Voegelin

L.C., No. 2:18-cv-440, 2020 WL 4201666, at *2 (S.D. Ohio July. 22, 2020) (citing Wilkerson v.

Brakebill, No. 3:15-cv-435, 2017 WL 401212, at *2-3, 2017 U.S. Dist. LEXIS 12305, at *2 (E.D.

Tenn. Jan. 30, 2017)). The purpose of this prejudice analysis is “to protect defendants who have

put considerable time and effort into defending a case, only to have the plaintiff pull the rug out

from under them by voluntarily dismissing the action.” Wilkerson, 2017 WL 401212, at *2-3,

2017 U.S. Dist. LEXIS 12305, at *2 (quoting Crozin v. Crown Appraisal Grp., Inc., Nos. 2:10-cv-

581, 2:10-cv-764, 2012 WL 139219, at *2, 2012 U.S. Dist. LEXIS 5626, at *2 (S.D. Ohio Jan. 18,

2012) (discussing the prejudice analysis under Rule 41)).

The Rule 41(a)(2) factors that a court considers in evaluating prejudice include: (1) the

amount of time, effort, and expense the defendants have incurred in trial preparation; (2) any

excessive delay and lack of diligence by the plaintiffs in prosecuting the action; (3) insufficient

explanation for the need to dismiss; and (4) whether defendants have filed a motion for summary

judgment. Powell v. Honda of Am. Mfg., Inc., No. 2:06-cv-979, 2008 WL 2872273, at *3, 2008

U.S. Dist. LEXIS 56991, at *9–10 (S.D. Ohio July 22, 2008) (citing Grover v. Eli Lilly & Co., 33

F.3d 716, 718 (6th Cir. 1994)).

The Court finds these factors weigh in favor of dismissing the Defendants. The Parties

have recently concluded discovery and trial is over six months away, thus the Court concludes that

there has not been a lack of diligence on Plaintiff’s behalf, or an excessive amount of time spent

in trial preparation. Moreover, the Defendants at issue in the Stipulation have not filed a motion

for summary judgment. While the explanation for dismissal is not mentioned in the Stipulation,

the Court finds that the Rule 41(a)(2) factors weigh in favor of dismissal.

Pursuant to Fed. R. Civ. P. 21, Defendant Sheriff Scott Anger, Defendant Deputy Sheriff

James Hughes, and Defendant Greene County, Ohio Board of County Commissioners are

DISMISSED WITHOUT PREJUDICE.

DONE and ORDERED in Dayton, Ohio, this Wednesday, October 9, 2024.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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