Rule 41 Not Proper Method to Dismiss Particular Claims

What is the proper procedure for voluntarily dismissing a count in a civil action? This question is not explicitly answered by the text of the Federal Rules of Civil Procedure. The Eleventh Circuit offered a tutorial in Perry v. Schumacher Group of Louisiana, 2018 WL 2473721 (11th Cir. June 4, 2018), making clear that Fed. R. Civ. P. 41(a)(1)(A) is not an available mechanism for dismissals of anything short of the entire action. That rule’s plain text refers to dismissal of an “action” and permits dismissal by notice before an answer or summary judgment motion is filed and by stipulation of all parties afterward. Dismissing a particular claim, Judge Tjoflat’s opinion for the court instructed, should be accomplished by amendment under Rule 15.

The court’s ruling unraveled a procedural tangle in the district court. The employment-discrimination plaintiff had suffered summary judgment on all counts of her complaint but one. She sought to appeal that disposition. So she entered into a Rule 41 stipulation of dismissal with the defendants attempting to dismiss the remaining claim. The district court then entered judgment for the defendants, which was followed by the plaintiff’s notice of appeal. The Eleventh Circuit asked the parties to brief whether the dismissal—which was without prejudice—precluded the finality necessary for appellate jurisdiction. That query prompted the plaintiff to move, in the district court, for entry of a separate final judgment under Rule 54(b) on the claims that had been disposed of by summary judgment. But the district court denied that motion, finding that it lacked jurisdiction itself in the wake of her Rule 41 stipulation of dismissal of her sole remaining claim. Meanwhile, the Eleventh Circuit dismissed her appeal for lack of appellate jurisdiction. On remand, the plaintiff moved to dismiss the previously dismissed claim with prejudice, but the district court denied that motion, again for lack of jurisdiction.

In her second appeal, the court held—in what it termed a “stroke of sheer good fortune”—that the Rule 41 dismissal of her remaining claim was invalid, and so that claim remained pending in the district court, where she was free to move, on remand, to dismiss with prejudice by Rule 15 amendment, which presumably will open the pathway for her third trip to the Eleventh Circuit.

The court did not cite its prior holding that Rule 41 is not available to dismiss discrete claims, Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004), which apparently did not adequately get across the point. In that case, the court suggested that a notice of dismissal of a claim might be construed as a motion for a Rule 15 amendment, but that option wasn’t mentioned in Perry.

Posted by Tom Byrne.

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