United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on Plaintiff and Defendant Liberty
Mutual Commercial Market's (“Liberty”)
Stipulation of Dismissal without Prejudice [ECF No.
Plaintiff filed his Complaint [ECF No. 2] on July 31, 2019.
on November 11, 2019, the Plaintiff and Defendant Liberty
filed a Stipulation of Dismissal Without Prejudice [ECF No.
25]. The parties stipulated that claims against Liberty would
be dismissed without prejudice, pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A)(ii). Stipulated dismissals under
Rule 41(a)(1)(A)(ii) do not require judicial approval.
See Fed. R. Civ. P. 41(a)(1)(A)(ii) (stating that
“the plaintiff may dismiss an action without a court
order by filing . . . a stipulation of dismissal signed by
all parties who have appeared”); Jenkins v. Vill.
of Maywood, 506 F.3d 622, 624 (7th Cir. 2007) (noting
that a voluntary dismissal under Rule 41(a)(1) is effective
upon the filing of the stipulation); McCall-Bey v.
Franzen, 777 F.2d 1178, 1185 (7th Cir. 1985)
(“Rule 41(a)(1)(A)(ii) requires that the stipulation be
filed in court, and the date of filing is the date the
dismissal takes effect.”). However, Rule 41(a) speaks
in terms of dismissing an “action” but does not
mention the dismissal of individual claims. See Berthold
Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 776 (7th
Cir. 2001) (noting that Rule 41(a)(1) speaks in terms of
dismissing an action, not a claim). Therefore, a stipulation
for dismissal is ineffective here because the claims asserted
against the remaining Defendants are part of the same
“action” as the claims against Liberty that the
stipulation seeks to dismiss.
Court follows the reasoning set forth in Gatling v.
Nickel, 275 F.R.D. 495 (E.D. Wis. 2011), where the
district court invoked Rule 41(a)(2) to dismiss individual
claims-but not the entire action-pursuant to a stipulation of
the parties. The Gatling court noted the general
consensus that Rule 41(a) provides for the voluntary
dismissal of an action as opposed to individual claims.
Gatling, 275 F.R.D. at 496. However, the court
On the other hand, it should be noted that Rule 41(b), which
allows a defendant to move for involuntary dismissal, permits
the movant to request and the court to grant dismissal of the
entire action, or particular claims. Fed.R.Civ.P. 41(b).
While certain cases have read this dichotomy to indicate that
Rule 41(a) thus does not permit dismissal of individual
claims, else it would so state, see Hells Canyon
Preservation Council v. U.S. Forest Serv., 403 F.3d 683,
689 n. 7 (9th Cir. 2005), it does show that Rule 41
contemplates, more generally, a court's power to dismiss
individual claims. Further, the cases which prohibit
dismissal of individual claims under Rule 41(a) have tended
to do so in an adversarial context, that is for example, the
defendant opposed dismissal or the plaintiff attempted to
characterize a dismissal as voluntary on appeal. It would
seem needlessly constraining, where Rule 41 otherwise
contemplates dismissal of individual claims, to prohibit the
dismissal of individual claims under Rule 41(a) where both
parties have stipulated to such. Thus, the court is satisfied
that it has the power to enter an order in this situation.
Gatling, F.R.D. at 496.
consideration of the procedural context of this case, the
Court finds that it has the power, as the court did in
Gatling, to enter an order pursuant to Rule 41(a)(2)
to dismiss certain claims. The Court further finds that
dismissal of the claims against Defendant Liberty is
appropriate because the context in which dismissal is sought
is not adversarial and there is no prejudice to either party
in allowing the dismissal. It would serve no purpose here,
where the parties have stipulated to the dismissal, to
require the Plaintiff to move to amend his complaint (or
construe the stipulation as a motion to amend), for which
leave would be freely granted, and then require the Defendant
to defend the new complaint.
construed the parties' Stipulation for Dismissal Without
Prejudice as a request for a Court order, the Court, pursuant
to Federal Rule of Civil Procedure 41(a)(2), GRANTS the
dismissal [ECF No. 25] and ORDERS that Plaintiff's
Complaint against Defendant Liberty Mutual Commercial Market
is DISMISSED without prejudice.
 Plaintiff also filed a Stipulation of
Dismissal with Defendant United States that will be addressed
in a separate order.
 Other courts have required that a
plaintiff who wishes to drop some claims but not others
should do so by amending the complaint pursuant to Rule 15.
See, e.g., Cedar Lake Ventures I, LLC v. Town of
Cedar Lake, Ind., No. 2:10-cv-255, 2010 WL 3927508, at
*2 (N.D. Ind. Oct. 4, 2010) (converting “faulty”
Rule 41(a)(2) motion into a Rule 15 motion to amend the
complaint); Bibbs v. Newman, 997 F.Supp. 1174, 1177
(S.D. Ind. 1998) (“A motion to dismiss voluntarily a
single claim in a ...