United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendants Butler &
Associates, P.A., Stormont-Vail, Inc., and Stormont-Vail
Healthcare's (collectively, “the defendants”)
Motion to Dismiss (Doc. 8). In plaintiff's Opposition,
she stipulates to the dismissal of Stormont-Vail, Inc. and
Stormont-Vail Healthcare, without prejudice, and asks to
reserve “the right to seek leave to add these parties
back if and when discovery may uncover additional facts
supporting claims against them.” Doc. 12 at 10.
dismissal of civil actions is governed by Federal Rule of
Civil Procedure 41. Subsection (a)(2) provides: “an
action may be dismissed at the plaintiff's request only
by court order, on terms that the court considers
proper.” Fed.R.Civ.P. 41(a)(2). Because plaintiff's
Opposition represents that she “does stipulate to the
dismissal of the two Stormont-Vail defendants from this
lawsuit, ” the court understands her Opposition to be a
“request” for voluntary dismissal under Rule 41.
Gobbo Farms & Orchards v. Poole Chemical Co.,
the Tenth Circuit held that Rule 41(a) “speaks to
dismissal of an action, [and] not just a claim within an
action.” 81 F.3d 122, 123 (10th Cir. 1996). It
explained its holding by stating 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.
The district courts in the Circuit have interpreted this
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 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's holding is limited to dismissing claims,
not parties, and so “Gobbo should not . . .
block [a] plaintiff's use of Rule [41(a)] to dismiss all
claims against” a defendant. 304 F.R.D. 691, 696-97 (D.
court, it appears, has not addressed the issue directly since
Gobbo was decided. But, three years before
Gobbo, a Kansas case predicted Gobbo's
holding in Campbell ex rel. Jackson v. Hoffman, and
then proceeded to discuss whether Rule 41(a) could be used to
dismiss just one party in a case. 151 F.R.D. 682, 684 (D.
Kan. 1993). In Hoffman, the court 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,
” then stated that it agreed with this use of Rule 41.
Id. (citations omitted). But, the court also noted
that it didn't need to “employ such a tactic”
because it had already granted the plaintiff's request to
dismiss the claims at issue under Rule 15. Id.
court predicts that the Tenth Circuit, were it to reach this
question again, likely would agree with the District of
Kansas in Hoffman and the District of Utah in
Van Leeuwen. Still, the court does not wish to stake
the parties' best hopes on this prediction. Instead,
given the uncertainty that these cases illustrate, the court
believes it prudent to construe plaintiff's Opposition as
a motion to amend her complaint. See Utah Republican
Party v. Cox, 177 F.Supp.3d 1343, 1372 (D. Utah 2016)
(“Where a plaintiff wishes to dismiss certain claims
but not dismiss the entire case or dismiss a defendant, the
proper procedure is to amend the complaint under Rule
15.” (footnote omitted)); Hoffman, 151 F.R.D.
at 684 (declining to use Rule 41(a) to dismiss claims and a
defendant and instead considering the plaintiff's request
under Rule 15(a)).
15(a) declares that leave to amend “shall be freely
given when justice so requires.” A motion to amend
under Rule 15 should be granted absent “undue delay,
bad faith or dilatory motive on the part of the movant . . .
[or] undue prejudice to the opposing party.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
court concludes that plaintiff deserves leave to amend her
Complaint. The court finds no prejudice to defendants in
granting plaintiff's request to dismiss them from this
action. And, by allowing plaintiff to dismiss them, the
Stormont-Vail defendants will avoid the expense, distraction,
and effort of litigation. The court thus grants
plaintiff's request to dismiss Stormont Vail, Inc., and
Stormont-Vail Healthcare from this case by allowing plaintiff
to file an amended complaint that omits those two defendants.
Plaintiff must file this amended complaint within 14 days
from the date of this Order.
court thus grants plaintiff's motion to amend her
Complaint. Plaintiff must file this amended complaint within
14 days from the date of this Order.