United States District Court, N.D. Mississippi, Greenville Division
AMENDED MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE.
employment discrimination action is before the Court on: (1)
the motion to dismiss of Tyrone Dilliard, Doc. #8; (2) the
motion to dismiss of MedStat EMS, Doc. #10; (3) the motion to
dismiss of Colby Sprayberry, Doc. #12; (4) Hart Everett
Johnson's “motion/request of the court to
remove” certain defendants, Doc. #16; and (5) MedStat
EMS' motion to strike, Doc. #18.
April 21, 2016, Hart Everett Johnson, acting pro se, filed a
“Complaint for Employment Discrimination”
against: (1) MedStat EMS (“MedStat”); (2) David
Grayson; (3) Dave Eldridge; (4) Lisa McDaniel; (5) Eric
Sprayberry; (6) Colby Sprayberry; (7) Rhonda Wade; (8) Mary
Foley Kotev; and (9) Tyrone Dilliard. Doc. #1.
2, 2016, Johnson filed proofs of service asserting personal
service on MedStat, Doc. #4, and Dilliard, Doc. #5. The
MedStat proof of service lists Johnson as the server and
states that the summons was served on MedStat on April 25,
2016 “on Office Manager Renae Woods, witnessed by
Winona Police Chief Johnny Hargrove.” Doc. #4. The
Dilliard proof of service also lists Johnson as the server
and states that Dilliard was personally served with a summons
on April 22, 2016, and that such service was “witnessed
by Greenville Police Officer Percy Pennington.” Doc.
days later, on May 5, 2016, Johnson filed a motion asking the
Court to order MedStat to accept service “of all
defendants named in the complaint who are still in their
employment ….” Doc. #6. The following day,
Johnson filed a proof of service stating that he personally
served Colby Sprayberry on May 3, 2016, and that such service
was “witnessed by coworker - (MedStat Employee) Ricky
Hoskins.” Doc. #7.
MedStat, and Colby Sprayberry filed motions to dismiss for
insufficient process and insufficient service of process on
May 12, May 16, and May 23, 2016, respectively. Doc. #8; Doc.
#10; Doc. #12. These motions were mailed to Johnson at his
address listed on the complaint. Johnson did not respond to
the motions to dismiss.
6, 2016, United States Magistrate Judge Jane M. Virden denied
Johnson's motion to compel acceptance of service. Doc.
#14. Two weeks later, on June 20, 2016, Johnson filed a
motion asking the Court “to remove all of the
defendants named in the … complaint with the exception
of David Grayson and the company MedStat ….”
Doc. #16. On November 10, 2016, Johnson, without receiving
leave of the Court, filed an amended complaint against
MedStat and Grayson. Doc. #17. On November 29, 2016, MedStat
filed a motion to strike the amended complaint. Doc. #18.
to “Remove” Defendants
June 20, 2016, motion reads in full:
I am making a motion / request of the court to remove all of
the defendants named in the above complaint with the
exception of David Grayson and the company MedStat Ems. The
other named defendants are important to my case as
participants and or witness to some or all of the events and
grounds for my complaint, but not particularly as defendants.
It was my error in listing them as such initially and I ask
the courts pardon on that.
Doc. #16. The Court interprets this request as a motion for
voluntary dismissal under Rule 41(a)(2) of the Federal Rules
of Civil Procedure, which grants a court authority to dismiss
an action “at the plaintiff's request.”
See Florists' Mut. Ins. Co. ex rel. Plains Growers,
Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 253
(5th Cir. 1973) (“[A] plaintiff is entitled to a
dismissal against one ...