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Miller V. Stewart: Voluntary Dismisssal by Less Than All Plaintiffs Under the Federal Rules

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Miller V. Stewart: Voluntary Dismisssal by Less Than All Plaintiffs Under the Federal Rules Volume 73 Issue 1 Dickinson Law Review - Volume 73, 1968-1969 10-1-1968 Miller v. Stewart: Voluntary Dismisssal by Less Than All Plaintiffs Under the Federal Rules Thomas L. VanKirk Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Thomas L. VanKirk, Miller v. Stewart: Voluntary Dismisssal by Less Than All Plaintiffs Under the Federal Rules, 73 DICK. L. REV. 150 (1968). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol73/iss1/8 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. MILLER v. STEWART: VOLUNTARY DISMISSAL BY LESS THAN ALL PLAINTIFFS UNDER THE FEDERAL RULES OF CIVIL PROCEDURE In Miller v. Stewart,' the United States District Court for the Eastern District of Illinois held that the voluntary dismissal by some but less than all plaintiffs is permissible under Rule 41(a) of the Federal Rules of Civil Procedure. 2 This decision focuses atten- tion on the conflict in the federal courts as to whether 41(a) dealing with voluntary dismissal is applicable to voluntary dismissal by less than all plaintiffs, or whether Rule 21 concerning midjoinder of parties, or Rule 15(a) dealing with amendments is the proper tool to effect this type of dismissal. This Note will analyze the de- cision of the Stewart case and evaluate the soundness of the de- cision in light of Rules 41(a), 21, and 15(a) of the Federal Rules with a view towards determining which rule is most proper in cases where less than all plaintiffs wish to dismiss. Miller v. Stewart3 arose out of an automobile accident in which a truck driven by plaintiff Icy Miller, with plaintiffs Harold Miller, Gerald Miller, and Kimberly Ann Miller as passengers, collided with an automobile driven by defendant Donna Stewart, an em- ployee of defendant John Pate. The truck was allegedly owned by plaintiff Owen Miller. The case was originally instituted in the Circuit Court of Har- den County, Illinois, but was later removed to the United States District Court for the Eastern District of Illinois. Federal juris- diction was based on diversity of citizenship, the plaintiffs being citizens and residents of Illinois and the defendants being citizens of North Carolina. The amounts in controversy as to plaintiffs Icy Miller and Harold Miller each exceeded the sum of $10,000. The amounts claimed by the other three plaintiffs were less than the 4 requisite jurisdictional amount. Plaintiffs Icy Miller and Harold Miller filed notice of dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.5 Up to that time no answer or motion for summary judgment had been filed.' Plaintiffs Gerald Miller, Owen Miller, and Kimberly 1. 43 F.R.D. 409 (E.D. Ill. 1967). 2. 28 U.S.C. § 2072 (1964). 3. 43 F.R.D. 409 (E.D. Ill. 1967). 4. In C. WRIGHT, FEDERAL COURTS § 32, at 90 (1963) the author writes: There has been a requirement, in some classes of cases, that more than a certain minimum amount be in controversy to bring cases to the federal trial courts. The Judiciary Act of 1789 fixed this sum at $500, and it was increased to $2,000 in 1887, $3,000 in 1911, and to the present figure of $10,000 in 1958. For jurisdiction to exist, where the requirements are applicable, the amount in controversy, exclusive of interest and costs, must exceed the stated sum. Id. at 90. 5. See p. 152 infra. 6. Rule 41 (a) (1) of the FED. R. Civ. P. dismissal can be effected Notes DICKINSON LAW REVIEW Ann Miller moved that their claims be remanded to the state court. Defendants moved to vacate the notice of dismissal, on the con- tention that voluntary dismissal under Rule 41 (a) (1) does not au- thorize dismissal by less than all plaintiffs. The district court denied defendants motion on the grounds that: (1) there had been no answer or motion for summary judg- ment and, therefore, Rule 41 (a) (1) was applicable to this dismissal; and (2) defendants would suffer no prejudice or hardship if Icy Miller and Harold Miller were dismissed. Since, after dismissal, the amounts in controvery no longer exceeded the requisite jurisdictional amount, the defendants had no right to retain federal jurisdiction.' Therefore, the suit as to the remaining three plaintiffs was remanded to the Circuit Court of Harden County. BACKGROUND Prior to the adoption of the Federal Rules of Civil Procedure, procedure in the federal courts was governed by the Practice Con- formity Act.8 Under that statute federal practice in civil actions at law was generally controlled by the practice of the courts of the state where the court was sittingY It was hoped that the federal courts would be prevented from reaching different substantive re- sults through the use of different procedural methods. The adoption of the Federal Rules was not intended to com- pletely change the existing procedural rules and thereby institute an entirely new method of practice. Rather, the purpose of the Rules was to establish a uniform procedure for all federal courts and to state rules plainly in order to eliminate as much surprise as possible from litigation.' 0 Thus in analyzing Rules 41(a), 21, by mere notice if it is given before an answer or motion for summary judgment is filed. See notes 17 and 18 infra and accompanying text. 7. The court has a choice whether or not to remand when, in an action removed to a federal court from a state court, the jurisdictional amount is destroyed. St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 294 (1938). 8. Act of June 1, 1872, ch. 924, 17 Stat. 196. That the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to the practice, pleadings, and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary not withstanding: Provided, however, that nothing herein contained shall alter the rules of evidence under the laws of the United States, and as practiced in the courts thereof. 9. Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 394 (1937). 10. Cf. Merrill v. United Air Lines, 151 F. Supp. 105, 105 (S.D.N.Y. 1957). and 15(a) it is necessary to look at not only the actual wording of the rules and their judicial interpretation, but also pre-Federal Rule procedure to see what was done in the fields of voluntary dismissal, misjoinder, and amendments. RULE 41 (a) Rule 41 (a) of the Federal Rules of Civil Procedure reads: (a) Voluntary dismissal: Effect Thereof (1) By plaintiff; By Stipulation. Subject to the provisions of Rule 23(e),11 of Rule 66,12 and of any statute of the United States,13 an action may be dismissed by the plaintiff without order of the court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, which- ever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipu- lation the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any Court of the United States or of any state an action based on or including the same claim. (2) By order of Court: Except as provided in para- graph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon an order of the Court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss the action shall not be dismissed against the defendant's objection unless the counterclaim can re- main pending for an independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. Prior to the adoption of the Federal Rules a plaintiff could generally dismiss an action voluntarily up to the time the case was delivered to the jury. 4 Furthermore, the plaintiff could dismiss the action as often as he desired. 15 The results of this practice are 11. FED. R. Civ. P. 23(e) provides: "A class action shall not be dis- missed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." Thus, Rule 23 (e) deals with dismissal. of a class action and is not applicable to this discusion. 12. FED. R. Civ. P. 66 in part provides: "An action wherein a receiver has been appointed shall not be dismissed except by order of the court." This rule applies to dismissal of receivers and is not applicable to this discussion. 13. This refers primarily to two statutes: (1) 8 U.S.C. § 1329 (1964) which deals with dismissal of a suit brought against an alien; and (2) 31 U.S.C.
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