United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
plaintiff sued four defendants in this case: Nebraska
Furniture Mart, Inc.; Equifax Information Services, LLC;
Experian Information Solutions, Inc.; and Trans Union, LLC.
Doc. 1. For reasons that properly are her own, plaintiff has
decided to stop litigating with three of them-Experian (Doc.
16), Trans Union (Doc. 17), and Equifax (Doc. 18). Her
filings invoke a variety of Rule 41's tools to pursue
Experian, plaintiff invoked Fed.R.Civ.P. 41(a)(1) and calls
her filing a “Dismissal of All Plaintiff's
Claims” against that defendant. The content of this
filing asserts that plaintiff “dismisses the
above-captioned action, including all [of her] claims against
[Experian] only.” Doc. 16. Plaintiff replicates this
filing for defendant Equifax, using the same title, invoking
the same subpart of Rule 41, and employing the same operative
language. Doc. 18. Neither the Experian nor the Equifax
filing specifies whether the desired dismissal is with or
without prejudice. So, Rule 41(a)(1)(B) would treat these
dismissals as ones without prejudice.
dismissal filing for defendant Trans Union, the only
defendant to plead a response to her Complaint, differs from
the other two. Also invoking Rule 41(a)(1), plaintiff and
Trans Union's counsel signed and filed something they
call a “Stipulation of Dismissal with Prejudice of All
Plaintiff's Claims Against [Trans Union] Only.”
Doc. 17. This filing provides that plaintiff and Trans Union
“agree and stipulate to the dismissal WITH PREJUDICE of
the above-captioned action, including all of Plaintiff's
claims against” Trans Union. Id.
two of plaintiff's dismissal filings did not comport
precisely with Rule 41, the court has examined the rule
closely. This examination led the court to a
question far more nuanced than it anticipated. Namely, in a
multi-defendant case, how can a plaintiff dismiss the claims
against some but not all of the defendants? This led the
analysis to the Circuit's holding in Gobbo Farms
& Orchards v. Poole Chemical Co., 81 F.3d 122 (10th
Cir. 1996). There, the Tenth Circuit held that Rule 41(a)
“speaks to dismissal of an action, [and] not just a
claim within an action.” Id. at 123. It
explained this holding by observing that the plaintiff
“offer[ed] no authority, and we have found none, to
support its contention that Rule 41(a) applies to dismissal
of [fewer] than all claims in an action.” Id.
district courts in the Circuit have interpreted Gobbo
Farms's language differently. Some, like the
District of Colorado in Carnett v. Watts, hold that,
though “[t]here is uncertainty in the Tenth Circuit
whether Fed.R.Civ.P. 21 . . . or 41 . . . applies to the
dismissal of a party from an action involving more than one
defendant, ” “in most instances . . . it is
immaterial whether the dismissal is effectuated under Rule 21
or 41.” No. 15-cv-02437-RM-KMT, 2016 WL 705986, at *1
(D. Colo. Feb. 23, 2016) (citations omitted). And others,
like the District of Utah in Van Leeuwen v. Bank of
America, hold that Gobbo Farms's holding is
limited to dismissing claims, not parties, and so
“Gobbo should not . . . block [a]
plaintiff's use of Rule 41(a)(1)(A)(i) to dismiss all
claims against” fewer than all defendants. 304 F.R.D.
691, 696-97 (D. Utah 2015).
court has considered the issue addressed in Gobbo
Farms several times. Three years before that decision, a
Kansas case predicted Gobbo Farms's holding in
Campbell ex rel. Jackson v. Hoffman, and then
proceeded to discuss whether parties could use Rule 41(a) to
dismiss just one party in a multi-defendant case. 151 F.R.D.
682, 684 (D. Kan. 1993). In that case, Judge Rogers explained
that “courts and . . . commentators have been more
willing to accept the argument that Rule 41 can be utilized
to dismiss one defendant or some, but not all, defendants,
” and added that he agreed with this use of Rule 41.
Id. (citations omitted). But, Judge Rogers also
noted that he didn't need to “employ such a
tactic” because he had already granted the
plaintiff's request to dismiss the claims at issue under
Rule 15. Id.
Gobbo Farms, as one would expect, our court
consistently has noted that Rule 41 does not apply to
dismissals of fewer than all claims. See, e.g.,
Carpenter v. The Boeing Co., 223 F.R.D. 552, 556 (D.
Kan. 2004) (Rule 41(a)(2) “provides for dismissals of
actions, not claims” (citations omitted)),
aff'd, 456 F.3d 1183 (10th Cir. 2006); HR
Tech., Inc. v. Imura Int'l U.S.A., Inc., No.
08-2220-JWL, 2011 WL 2174919, at *2 (D. Kan. June 3, 2011)
(“Rule 41 applies only to the dismissal of an entire
action and not merely the dismissal of a claim.”
(citation omitted)); Baxter State Bank v. Bernhardt,
No. 96-2460-JWL, 1998 WL 164631, at *3 n.3 (D. Kan. Mar. 3,
1998) (declining to address the question because the parties
did not raise it, but noting that Rule 41 does not apply to
dismissal of fewer than all claims).
current case comes to the court in this posture: Plaintiff
wants to stop litigating with three of the four defendants
she originally sued. Surely our rules permit-and even
support-such a laudable outcome. But binding precedent casts
doubt on the parties' ability to use the procedural
mechanism that they have chosen. Hoping to bring a pragmatic
and efficient solution to this dilemma, the court rules as
the court, in its discretion, elects to construe Docs. 16,
17, and 18 as motions to amend plaintiff's Complaint to
omit her claims against defendants Equifax Information
Services, LLC; Experian Information Solutions, Inc.; and
Trans Union, LLC. Given the relaxed standard applied by Rule
15 to such requests so early in a case, the court grants the
request to amend. Plaintiff may eliminate defendants and
claims at issue in the case by filing an amended complaint
within 14 days of the date of this Order. This amended
complaint properly may omit all claims against the three
defendants who plaintiff, in Docs. 16 through 18, has agreed
may depart from this case.
the court is aware that the agreement between plaintiff and
Trans Union, LLC contemplates a conclusion with prejudice to
plaintiff's claims with that defendant. Whether an
amended complaint that omits Trans Union, LLC as a defendant
in this action will give effect to the spirit of those
parties' agreement is a consideration that the court must
entrust to them. For the court to address that concern now as
something of an anticipated hypothetical would engage the
court improperly in the forbidden business of giving advisory
opinions. See Norvell v. Sangre de Criso Dev. Co.,
Inc., 519 F.2d 370, 375 (10th Cir. 1975) (“It is
fundamental that federal courts do not render advisory
opinions . . . .” (citations omitted)).