Mereness v. Sun Life Assurance Company of Canada

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION BRETT MERENESS, in his capacity as Personal Representative of the Estate of Jacquelyn Ann Mereness and in his capacity as next of kin to Jacquelyn Ann Mereness, Plaintiff, Case No. 3:24-cv-802-TJC-PDB v. SUN LIFE ASSURANCE COMPANY OF CANADA, a Foreign Corporation, Defendant. ORDER THIS CASE is before the Court on Plaintiff’s Notice of Voluntary Dismissal of Count II – Breach of Fiduciary Duty, Doc. 22. Although the notice cites Rule 41(a)(1) Fed. R. Civ. P. as authority to dismiss Count II, the appropriate mechanism to dismiss a single count is to seek leave to file an amended complaint. See Campbell v. Altec Indus., Inc., 605 F.3d 839 , 841 n.1 (11th Cir. 2010) (“A plaintiff wishing to eliminate particular claims or issues from the action should amend the complaint under [Federal] Rule [of Civil Procedure] 15(a) rather than dismiss under Rule 41(a).”) (quoting Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004)). Accordingly, the Court will construe the notice as a motion for leave to amend and it is hereby ORDERED: 1. No later than December 20, 2024, Plaintiff shall file a third amended complaint. 2. No later than January 10, 2025, Defendant shall file its answer to the third amended complaint. 3. Defendant Sun Life Assurance Company of Canada’s Motion to Dismiss Count II of Plaintiff's Second Amended Complaint, Doc. 20, is DENIED as moot. DONE AND ORDERED in Jacksonville, Florida the 2nd day of December, 2024. Ke Cmothy, ff. Corrigan TIMOTHY J. CORRIGAN STACI Senior United States District Judge ddw Copies: Counsel of record