Mulhall v. Auto-Owners Insurance Company ( 2024 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MICHAEL MULHALL, Plaintiff, 8:24CV251 v. ORDER AUTO-OWNERS INSURANCE COMPANY, Defendant. On June 6, 2024, plaintiff Michael Mulhall (“Mulhall”) filed this lawsuit (Filing No. 1) in state court against defendant Auto-Owners Insurance Company (“Auto- Owners”), claiming it owes him further payments to cover the cost of hail damage to his property. Auto-Owners has since removed Mulhall’s suit to this Court on the basis of diversity between the parties. See 28 U.S.C. §§ 1332(a)(1), 1441. It also moved to dismiss Mulhall’s bad-faith claim against it pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) (Filing No. 7). Mulhall has now filed a Notice of Partial Voluntary Dismissal (Filing No. 11) of that bad-faith claim. He states he elects to voluntarily dismiss only that claim “to narrow the issues to be presented at trial.” But under Rule 41(a), a plaintiff can only effectuate the dismissal of an entire “action . . . by filing a notice of dismissal.” See also Rosell v. VMSB, LLC, 67 F.4th 1141, 1144 (11th Cir. 2023) (stating “because the parties attempted to dismiss one count rather than the entire action, no part of Rule 41(a) authorized the dismissal”); Taylor v. Brown, 787 F.3d 851, 857 (7th Cir. 2015) (same); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2362 (4th ed. June 2024 Update) (“It seems well established that when multiple claims are filed against a particular defendant, Rule 41(a) is applicable only to the voluntary dismissal of all claims against the defendant.”). To properly eliminate that claim, therefore, Mulhall should amend his complaint. See Fed. R. Civ. P. 15(a)(1)(B) (allowing a party to “amend its pleading once as a matter of course... 21 days after service of a motion under Rule 12(b)). IT IS SO ORDERED. Dated this 31st day of July 2024. BY THE COURT: Robert F. Rossiter, Jr. Chief United States District Judge