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Johnson v. MedStat EMS

United States District Court, N.D. Mississippi, Greenville Division

December 16, 2016

HART EVERETT JOHNSON PLAINTIFF
v.
MEDSTAT EMS; DAVID GRAYSON; DAVE ELDRIDGE; LISA MCDANIEL; ERIC SPRAYBERRY; COLBY SPRAYBERRY; RHONDA WADE; MARY FOLEY KOTEV; and TYRONE DILLIARD DEFENDANTS

          AMENDED MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         This 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.

         I

         Procedural History

         On 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.

         On May 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. #5.

         Three 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.

         Dilliard, 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.

         On June 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.

         II

         Motion to “Remove” Defendants

         Johnson's 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 ...


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