Opinion
2:14 CV 288
04-21-2016
JESSE VARGAS, Plaintiff v. LAKE COUNTY POLICE DEPARTMENT, et al., Defendants.
MEMORANDUM AND ORDER
Plaintiff has moved to voluntarily dismiss, with prejudice, counts VII-XII (including a duplicative eleventh count) of his complaint, DE # 36, and moved to voluntarily dismiss paragraphs 121 and 122 of Count VI, DE # 42. Both motions are unopposed.
"Rule 41(a)(1)(i) does not speak of dismissing one claim in a suit; it speaks of dismissing 'an action'—which is to say, the whole case." Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 777 (7th Cir. 2001); see also Loutfy v. R.R. Donnelley & Sons, Co., 148 F.R.D. 599, 602 (N.D. Ill. 1993) (collecting cases). Nevertheless, where parties have stipulated to dismissal of particular claims, this court and other district courts in this circuit, see, e.g., Gatling v. Nickel, 275 F.R.D. 495, 496 (E.D. Wis. 2011), have allowed the practice. Here, although neither motion is opposed, there is no stipulation. Cf. Sarff v. Farmco, LLC, No. 11-3153, 2011 WL 3489842 (C.D. Ill. Aug. 10, 2011) (Gatling not followed for unopposed motion because no stipulation). Moreover, the request to dismiss individual paragraphs of the complaint takes that motion beyond the purview of Rule 41. Accordingly, the court will treat both motions as motions for leave to amend the complaint pursuant to Rule 15(a). Cf. Loutfy, 148 F.R.D. at 602.
Treated as such, both motions (DE # 36, DE # 42) are GRANTED. Plaintiff is ORDERED to file an amended complaint in compliance with this order; that is, omitting counts VII through XII including duplicate count XI, and omitting paragraphs 121 and 122 of Count VI.
SO ORDERED.
Date: April 21, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT