Moran et al v. State Farm Fire and Casualty Company et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SUSAN P. MORAN and MICHAEL
J. MORAN,
Plaintiffs,
v.
STATE FARM FIRE AND CASUALTY
COMPANY and VAL VERDE
HOMEOWNER’S ASSOCAITION, INC.,
Defendants.
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) Case No. CIV-24-00880-PRW
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ORDER
On October 16, 2024, Plaintiffs filed an Unopposed Motion to Withdraw Motion to
Remand (Dkt. 15) and a Notice of Dismissal Without Prejudice of Defendant Val Verde
Homeowner’s Association, Inc. (Dkt. 16). Plaintiffs previously moved to remand the case
to state court based on Val Verde’s citizenship (Dkt. 11). They now seek to voluntarily
dismiss Val Verde only and withdraw their Motion to Remand (Dkt. 11). Under Federal
Rule of Civil Procedure 41(a)(1)(A)(i), a plaintiff may “dismiss an action without court
order by filing . . . a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment.” Val Verde has not filed an answer or a motion for
summary judgment, but Defendant State Farm Fire and Casualty Company has filed an
answer (see Dkt. 5).
Many district courts in the Tenth Circuit, along with most of the circuit courts, have
held that a plaintiff may use Rule 41(a)(1) to dismiss all his claims against one defendant
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without dismissing the entire action.1 In an unpublished opinion, the Tenth Circuit
endorsed this view, writing that Rule 41(a)(1)(A) “permits the dismissal of fewer than all
parties so long as all claims against a particular party are dismissed.”2 Similarly, courts
(including at least one district court in the Tenth Circuit)3 have generally held that the filing
of an answer or a motion for summary judgment by one defendant does not prevent a
dismissal against another defendant who has not filed those responsive pleadings.4 The
Court finds this weight of caselaw to be persuasive and finds that State Farm’s answer does
not preclude Plaintiffs from voluntarily dismissing their claims against Val Verde. Because
1 Castillo v. Prater, No. CIV-23-675-D, 2023 WL 9546946, at *13 (W.D. Okla. Dec. 8,
2023) (collecting cases), rec. adopted, No. CIV-23-675-D, 2024 WL 21801 (W.D. Okla.
Jan. 2, 2024); see also Van Leeuwen v. Bank of Am., N.A., 304 F.R.D. 691 (D. Utah 2015)
(“The First, Third, Fifth, Eighth, and Ninth Circuits form the majority in holding that ‘Rule
41(a)(1) allows a plaintiff to dismiss without a court order any defendant who has yet to
serve an answer or a motion for summary judgment.’” (quoting Pedrina v. Chun, 987 F.2d
608, 609 & n. 1 (9th Cir.1993))).
2 Kristina Consulting Grp., LLC v. Debt Pay Gateway, Inc., No. 21-5022, 2022 WL
881575, at *2 n.4 (10th Cir. Mar. 25, 2022). The Court cites unpublished decisions of the
Tenth Circuit for their persuasive value, consistent with Tenth Cir. R. 32.1 and Fed. R.
App. P. 32.1.
3 See Phillips USA Inc. v. Allflex USA, Inc., No. 92-2405-JWL, 1993 WL 545216, at *5 (D.
Kan. Dec. 10, 1993).
4 Welsh v. Correct Care, L.L.C., 915 F.3d 341, 344 (5th Cir. 2019); Constantinides v. Los
Angeles Cnty. Sheriff, 955 F.2d 47, at *1 (9th Cir. 1992); Aggregates (Carolina), Inc. v.
Kruse, 134 F.R.D. 23, 25 (D.P.R. 1991); Terry v. Pearlman, 42 F.R.D. 335, 338 (D. Mass.
1967); Cooney v. William Robinson Dairy, Inc., 744 F. Supp. 841, 843 (N.D. Ill. 1990);
Doran v. McGinnis, 158 F.R.D. 383, at 389 (E.D. Mich. 1994); See also 8 James Wm.
Moore et al., Moore’s Federal Practice - Civil § 41.33(c)(iv) (Mathew Bender 3d ed. 2024)
(“[T]he service of an answer or motion for summary judgment by some defendants will
not defeat the plaintiff’s right to dismiss against any of the non-answering or non-moving
defendants.”).
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a Rule 41(a)(1) dismissal is self-executing, the Court need not take further action with
regards to the Notice (Dkt. 16).5
As to the Motion to Withdraw (Dkt. 15), the Court observes that the dismissal of
Val Verde resolves the sole question as to the Court’s diversity jurisdiction over the action.
Accordingly, for good cause shown and noting that State Farm does not oppose it, the Court
GRANTS the Motion (Dkt. 15). Plaintiffs’ Motion to Remand (Dkt. 11) is withdrawn.
IT IS SO ORDERED this 29th day of October 2024.
5 Janssen v. Harris, 321 F.3d 998, at 1000 (10th Cir. 2003).
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