UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MURRAY ENERGY

CORPORATION, et al.,

Plaintiffs,

 Case No. 2:18-cv-440

v. JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kimberly A. Jolson

CASSIDY, COGAN, CHAPPEL,

AND VOEGELIN, L.C., et al.,

Defendants. 

OPINION AND ORDER

Plaintiffs Murray Energy Corporation, Murray American Energy, Incorporated, and the 

Ohio Valley Coal Company (collectively the “Debtors”) have filed a motion to dismiss with 

prejudice (ECF No. 63). Plaintiff Robert E. Murray opposes the motion (ECF No. 68) and 

Defendants Cassidy, Cogan, Chappel, and Voegelin, L.C. and Patrick Cassidy (collectively 

“Defendants”) do not oppose the motion (ECF No. 69). For the following reasons the motion to 

dismiss (ECF No. 63) is DENIED without prejudice.

I.

On May 4, 2018, this case was removed to this Court. (See ECF No. 1.) On November 4, 

2019, discovery was stayed because the Debtors entered bankruptcy. (See ECF No. 53.) On March 

26, 2020, the Debtors filed a motion to dismiss the case with prejudice under Federal Rule of Civil 

Procedure 41(a)(2). (See Mot. Dismiss, ECF No. 63.) The Debtors indicate they have filed for 

bankruptcy and have evaluated whether to proceed with this case considering their significant 

competing needs for their capital. (Id. at 1.) The Debtors indicate they have decided to dismiss 

their claims with prejudice to avoid any potential prejudice to Defendants. (Id. at 3.)

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Mr. Murray opposes dismissal with prejudice. (Murray Resp. at 1, ECF No. 68.) Mr. 

Murray indicates he does not oppose dismissal of the Debtors’ claims but opposes dismissal with 

prejudice because he is concerned a dismissal with prejudice may affect his ability to move forward 

with this case against Defendants. (Id. at 3-4.) Plaintiff asserts that “the risk to Mr. Murray of a 

preclusive effect far outweighs the Murray Energy Plaintiffs’ reasoning behind their request for a 

dismissal with prejudice.” (Id. at 3.) Defendants do not oppose dismissal so long as the dismissal 

is with prejudice. (Def.’s Resp. at 1, ECF No. 69.)

II.

In their motion the Debtors purport to utilize Rule 41(a)(2) to dismiss their claims against 

Defendants. Importantly, however, in the Sixth Circuit Rule 41(a) is not the proper vehicle to 

dismiss less than the entirety of an action. See Warfal v. Chase Bank, USA, N.A., No. 2:11-cv699, 2012 U.S. Dist. LEXIS 441135, at *5 (S.D. Ohio Feb. 10, 2012); Coleman v. Ohio State Univ. 

Med. Ctr, No. 2:11-cv-49, 2011 U.S. Dist. LEXIS 83813, at *6 (S.D. Ohio Aug. 1, 2012); Letherer 

v. Alger Grp., L.L.C., 328 F.3d 262, 266 (6th Cir. 2003), recognized as overruled on other grounds 

in Blackburn v. Oaktree Capital Mgmt., LLC, 511 F.3d 633, 636 (6th Cir. 2008); In re Behr Dayton 

Thermal Prods. LLC Litig., No. 3:08-cv-326, 2012 U.S. Dist. LEXIS 21642, at *9–10 (S.D. Ohio 

Feb. 21, 2012). Instead, it is Federal Rules of Civil Procedure 15 and/or 21 which provide for 

voluntary dismissal of claims by some but not all of the plaintiffs in a case. See Crozin v. Crown 

Appraisal Grp., Inc., Nos. 2:10-cv-581, 2:10-cv-764, 2012 U.S. Dist. LEXIS 5626, at *5–6 (S.D. 

Ohio Jan. 18, 2012).

Accordingly, this Rule 41 motion is DENIED without prejudice so that the Debtors may 

move under Rule 15 or 21.1

 See id. (noting that the Court had previously denied the plaintiffs’

1 At times, this Court has gone on to analyze improperly brought Rule 41(a) motions under Rule 15 and/or 21 noting 

that filings are to be construed by their substantive content and not by their labels. See Warfel, 2012 U.S. Dist. LEXIS 

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motion to dismiss certain plaintiffs’ claims from the lawsuit without prejudice noting that Rule 41 

was not the proper vehicle to dismiss less than the entirety of an action).

III.

The Debtors motion (ECF No. 63) is DENIED without prejudice.

IT IS SO ORDERED.

6/11/2020 s/Edmund A. Sargus, Jr. 

DATE EDMUND A. SARGUS, JR.

 UNITED STATES DISTRICT JUDGE

441135 at *6; Coleman, No. 2011 U.S. Dist. LEXIS 83813 at *6–7. In this case, however, because Mr. Murray 

objected to the Debtor’s dismissal with prejudice and Defendants objected to a dismissal without prejudice the Court 

would like the Debtors to refile under the correct rule so that Mr. Murray and Defendants can determine whether they 

object.

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