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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WHITNEY M MOORE, DDS, ET AL., 

 Case No. 2:12-cv-01163 

 Plaintiffs, JUDGE GREGORY L. FROST 

 Magistrate Judge Kemp 

v. 

 

JOHN F. GALLAGHER, ET AL., 

 Defendants. 

ORDER

 This matter is before the Court on Defendant David Kerschner, DDS’s motion for 

attorney’s fees for frivolous conduct. (ECF No. 48.) Kerschner contends that Plaintiffs 

wrongfully joined him in this action and that the claims against him were “groundless and 

frivolous.” (Id. at PageID# 545.) Plaintiffs filed a memorandum in response and opposition to 

Kerschner’s motion. (ECF No. 50.) For the reasons set forth below, the Court DENIES 

Defendant Kerschner’s motion. 

 Plaintiffs’ Complaint in this action alleges the existence of a complex enterprise and 

conspiracy that caused Plaintiffs economic loss and also bilked (allegedly) Ohio’s Medicaid 

program of hundreds of thousands of dollars. Defendant Kerschner was one of several 

Defendants named in the complaint as being part of the alleged enterprise and conspiracy. In a 

previous Order, this Court granted Plaintiffs’ motion to drop certain Defendants from this action, 

including Kerschner. (ECF No. 47.) Defendants Kerschner, Thompson Hine LLP, Jerry Vande 

Werken, Jayson Hogan, and Kathy Dotson were dropped as Defendants in this action pursuant to 

Fed. R. Civ. P. 21, without prejudice to Plaintiffs’ ability to refile timely claims against them. 

(Id.) 

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 Defendant Kerschner now moves this Court for an award of attorney’s fees. Kerschner 

contends he had “no involvement” with Plaintiffs’ dental practice and that Plaintiffs’ counsel 

was apprised of that fact early on. For this reason, and for those stated in his motion to dismiss 

this action (which the Court terminated as moot following the dismissal of Kerschner from this 

case), Kerschner contends that he is entitled to a fee award as a prevailing party due to Plaintiffs’ 

“bad faith” conduct in this action. See Hall v. Cole, 412 U.S. 1, 5 (1973). 

 Kerschner argues that Plaintiffs’ bad faith is conclusively established by the Court’s order 

dismissing him from the case under Fed. R. Civ. P. 21. He contends that Plaintiffs’ request to 

drop him as a party was “an admission that Kerschner was wrongfully joined in the first place.” 

(ECF No. 48 at Page ID# 545.) Kerschner is wrong on this point. Though Rule 21 does speak to 

the “misjoinder” of parties, dismissing parties for misjoinder is not the only function of the rule. 

The rule is also the proper procedural vehicle for dismissing less than the entire action, such as 

here, when Plaintiffs sought to voluntarily dismiss several Defendants from the suit for reasons 

that (according to Plaintiffs’ motion) had nothing to do with the merits of the case against those 

Defendants. (ECF No. 45.) See Letherer v. Alger Group, L.L.C., 328 F.3d 262, 265-66 (6th Cir. 

2003) (suggesting that Fed. R. Civ. P. 21 is the proper procedural vehicle for dismissing fewer 

than all defendants from an action), recognized as overruled on other grounds in Blackburn v. 

Oaktree Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir. 2008); see also Crozin v. Crown 

Appraisal Group, Inc., Nos. 2:10-cv-581 and 2:10-cv-764, 2012 U.S. Dist. LEXIS 876 (S.D. 

Ohio Jan 4, 2012) (relying on Letherer to find that Fed. R. Civ. P. 21, and not Fed. R. Civ. P. 41, 

was the proper procedural vehicle for dismissing fewer than all parties in an action). 

Accordingly, Kerschner cannot rely on the Rule 21 dismissal as a basis for finding “bad faith” on 

the part of Plaintiffs. 

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 Moreover, even assuming that the Court could characterize Kerschner as a prevailing 

party by virtue of his dismissal without prejudice from this action, the Court is unable to find 

frivolous conduct at this juncture. To do so would require the Court to accept Kerschner’s 

version of the facts underlying this case and to reject Plaintiffs’ allegations out of hand. With no 

factual record before it, the Court cannot leap to the conclusion that Plaintiffs lacked a basis for 

bringing their claims against Kerschner. Indeed, Plaintiffs’ response to Kerschner’s motion 

detailed the breadth of their investigation into the facts and how they reached the conclusion that 

Kerschner was involved in the alleged wrongdoing that forms basis of the complaint in this case. 

(ECF No. 50.) 

 For the foregoing reasons, the Court DENIES Defendant Kerschner’s motion for 

attorney’s fees. 

 IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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