Kinder v. Norfolk Southern Corporation

• Court: District Court, N.D. Ohio
• Decided: May 29, 2025
• Docket: 4:25-cv-00169
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

CHASE KINDER, et al., ) Case No. 4:25-cv-169 ) Plaintiffs, ) Judge J. Philip Calabrese ) v. ) Magistrate Judge ) Jonathan D. Greenberg NORFOLK SOUTHERN ) CORPORATION, et al., ) ) Defendants. ) )

OPINION AND ORDER Plaintiffs Chase and Cheryl Kinder own and operate Birddoghill Kennel in East Palestine, Ohio, a business allegedly affected in the train derailment on February 3, 2023. From that derailment and its aftermath, Plaintiffs brought suit, alleging seven claims. As relevant here, Count VII asserts a claim for negligent and intentional infliction of emotional distress. Defendants moved to dismiss that claim (ECF No. 14), then the parties jointly moved for its dismissal (ECF No. 16). Under the law of this Circuit, Rule 41(a) can only be used to dismiss entire actions; accordingly, it cannot be used to dismiss fewer than all parties or all claims. Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961) (noting that a plaintiff may only dismiss an “action” using Rule 41(a), where an “action” is interpreted to mean “entire controversy”). To dismiss fewer than all claims or parties from an action falls to Rule 21. See id.; Sheet Metal Workers’ Nat’l Pension Fund Bd. of Trustees v. Courtad, Inc., No. 5:12-cv-7238, 2013 WL 3893556, at *4 (N.D. Ohio July 26, 2013) (citing Philip Carey Mfg., 286 F.2d at 785) (“A plaintiff seeking to dismiss only one defendant from an action must move the Court to do so under Rule 21.”).

Rule 21 provides, “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against any party.” Fed. R. Civ. P. 21. Unless the parties agree otherwise, the Court generally drops a claim under Rule 21 without prejudice. See Michaels Bldg. Co. v. Ameritrust Co. N.A., 848 F.2d 674, 682 (6th Cir. 1988). Here, the parties agree that dismissal without prejudice is appropriate. (ECF No. 16, ¶ 2, PageID #140.) Dismissal of a claim under

Rule 21 is committed to the sound discretion of the district court. Hiller v. HSBC Fin. Corp., 589 F. App’x 320, 321 (6th Cir. 2015) (per curiam) (citing Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 612 (6th Cir. 2003)). Based on the Court’s review of the record, and the unopposed motion to dismiss the claim, the Court sees no reason not to dismiss Count VII without prejudice. Accordingly, the Court GRANTS the parties’ joint motion to dismiss Count VII without prejudice. (ECF No. 16.) Therefore, the Court DENIES AS MOOT

Defendants’ motion to dismiss. (ECF No. 14.) SO ORDERED. Dated: May 28, 2025

J. Philip Calabrese United States District Judge Northern District of Ohio