In multiparty lawsuits, situations can arise where dismissal of a single party—either on the plaintiff or defendant side—is sought. For example, a plaintiff in a multi-plaintiff suit may tire of the litigation. Or, during the course of litigation, a spouse divorcing a plaintiff may wish to dismiss his or her loss of consortium claim and exit the litigation. A plaintiff may settle with a single defendant, or it might become clear that discovery simply does not bear out a claim against one of the defendants. Seeking to dismiss a single party voluntarily while leaving the remainder of the lawsuit intact can present a procedural issue in certain federal jurisdictions.
Voluntary dismissal is generally addressed by Rule 41(a) of the Federal Rules of Civil Procedure and, in practice, tends to be a perfunctory, one-page filing. However, there is an uneven circuit split as to whether Rule 41 of the Federal Rules of Civil Procedure permits dismissal of a single party in a multiparty case. Rule 41(a) provides in pertinent part that the plaintiff “may dismiss an action” without a court order by making a required filing. See Fed. R. Civ. P. 41(a)(1) (emphasis added). The Sixth Circuit interprets the scope of an “action” narrowly to mean only dismissal of the “entire controversy,” not a single party. Mullins v. C.R. Bard, Inc., No. 0:19-CV-85-JMH-EBA, 2020 WL 4288400, at *1 (E.D. Ky. July 27, 2020) (citing Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961)).
The Second Circuit has also followed this approach, though it has been called into question. See Baksh v. Captain, No. 99-CV-1806 (ILG), 2000 WL 33177209, at *2 (E.D.N.Y. Dec. 11, 2000) (discussing Harvey Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105 (2d Cir.), cert. denied, 345 U.S. 1964 (1953)).
However, most other circuits do not hold to a “literal” reading of the word “action” in Rule 41. See Van Leeuwen v. Bank of Am., N.A., 304 F.R.D. 691, 693 (D. Utah 2015) (collecting cases). The majority rule permits a plaintiff “to dismiss fewer than all of the named defendants” because it “is consistent with… Rule 41(a)(1),” which was “designed to permit a disengagement of the parties at the behest of the plaintiff… in the early stages of a suit, before the defendant has expended time and effort” in case preparation. Id. See also Wright & Miller, Federal Practice and Procedure: Civil 2d §2362 (describing this interpretation as “the sounder view” with “the weight of judicial authority”).
There is an uneven circuit split as to whether Rule 41 of the Federal Rules of Civil Procedure permits dismissal of a single party in a multiparty case.
Sixth Circuit practitioners who want to dismiss less than the entire controversy still have a procedural route to do so. Rule 21 provides that, “on motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. However, note that “[i]n exercising its discretion under Rule 21, the Court must consider prejudice to the nonmoving party.” Mullins, 2020 WL 4288400, at *3–4 (citing Wilkerson v. Brakebill, No. 3:15-cv-435, 2017 WL 401212 (E.D. Tenn. Jan. 30, 2017)). Ironically “[t]he inquiry overlaps with Rule 41 standards as guidance in evaluating potential prejudice to the non-movant.” Id. (internal citation omitted).
Because the Rule 21 standard requires consideration of the same factors as Rule 41, the Sixth Circuit’s differentiation on this issue can come across as pedantic, as other circuits have pragmatically determined. See Van Leeuwen, 304 F.R.D. at 693 (describing a “literal interpretation” of Rule 41 as “relatively cumbersome”). Nevertheless, Second- and Sixth-Circuit practitioners should be careful to rely on the proper rule when moving to dismiss a single party in a multiparty case, and to satisfy the court that the Rule 21 factors weigh in favor of dismissal. When dismissing a plaintiff, the court will consider “(1) defendant’s effort and expense of preparation for trial; (2) excessive delay and lack of diligence on plaintiff’s part in prosecuting the case; (3) insufficient explanation for the need for dismissal; and (4) whether a motion for summary judgment is pending.” Mullins, 2020 WL 4288400, at *4 (citing Grover v. Eli Lily & Co., 33 F.3d 716, 718 (6th Cir. 1994)).
In Mullins, the U.S. District Court for the Eastern District of Kentucky even weighed these factors when the parties jointly moved to dismiss the plaintiff’s claims under Rule 41(a)(1)(A)(ii). See id. Practitioners should therefore prepare a motion that adequately addresses these factors and not take dismissal for granted with a perfunctory filing. As the old adage goes, an ounce of prevention is worth a pound of cure.