Here, prior to the service of any answers, a defendant moves for dismissal as to less than all the defendants. Although Rule 41(a) specifically provides for dismissal on application of' a plaintiff, the rule may be applied because the plaintiff consents to the granting of the relief sought. Somе of the remaining defendants did not consent but did not oppose the motion.
The Rules of Civil Procedure are silent as to discontinuance or dismissal of an action as to less than all the defendants. Rules 41(a) (2), 21 and 15(a), F.R.Civ. P., 28 U.S.C.A., have been employed to accomplish this.
The problem presented, irresрective of the procedural method used to discontinue or dismiss the action as to certain of the defendants, is whether in a private antitrust suit the Court may, with the plaintiff’s consent, order a discontinuаnce or a dismissal of the suit as to one or more of severally named defendants over the objections of a party remaining in the suit as a defendant, where the objecting defendant has not рleaded a cross-claim.
In a suit in this Court in which certain defendants, who had settled with the plaintiff and with added defendants against whom they had served a cross complaint, moved for dismissal of the complаint as to them, the Court held that it had the inherent power even over objections of the remaining dеfendants to dismiss the suit as to less than all the defendants where no objecting defendant had served any cross-claim against the moving party. (Broadway & Ninety-Sixth St. Realty Corp. v. Loew’s Inc.,
Judge Dimock in his opinion pointed out in this suit that there is a сonflict as to the authority for the dropping of a party as distinguished from dismissing the entire action. The Third Circuit, in
“If the power is inherent it must bе exercised fairly. If it is granted by one of the above enumerated rules it is to be exercised ‘when justiсe so requires’ Rule 15(a), ‘on such terms as are just’ Rule 21, or ‘upon such terms and conditions as the court dеems proper’ Rule 41(a) (2). Since the considerations applicable in all four cases аre thus substantially identical it is unnecessary to decide whether I am acting under Rule 15(a), Rule 21, Rule 41(a) (2), or undеr none of them.” (23 F.R.D. 9 at p. 11.)
In a fairly recent antitrust suit, the Court granted a motion by the Government to dismiss without prejudicе 36 named conspirators on the ground that these defendants were not necessary parties tо the relief requested.
“While Rule 21 contemplates dropping parties at any stage of the proceedings ‘on such terms as are just’ and is addressed to the court’s discretion, application of the rule is premised upon a defect of parties. In the instant motion the court is not confronted with the problem of whether these defendants are necessary, proper or indispensаble parties to the action. The government merely says that they are not necessary to the relief prayed for in the complaint though they may be participants in the violation charged.
“[5] It thus seems that the motion partakes of a true dismissal of the action against these particulаr defendants and should be considered in the light of the philosophy underlying Rule 41 of the Federal Rules of Civil Procedure though its operation is limited to these defendants and not to the entire action.” (13 F. R.D. 490, at p. 494.)
At this stage of the litigation, none of the objecting defendants have a vested right to keep any other defendant in the suit, when the plaintiff consents to the dismissal. Any possible unfairness in the dismissal of these defendants would seem to be entirely absent. Furthermore, under these circumstances, it is patently unfair to сompel the plaintiff to sustain the cost of suing these defendants and to compel these defеndants to bear the cost and burden of a defense.
Motion granted; complaint dismissed without costs аs to defendants Ward Leonard Electric Co. and The Arrow-Hart & Hegeman Electric Company, and an order providing for entry of judgment accordingly may be submitted.
Notes
. Rule 41, E.R.Civ.P., Voluntary Dismissal of Action by Plaintiff. An ACTION may be dismissed without Court order (1) by filing a notice оf dismissal at any time before the service of the answer by the adverse party or of a motion for summary judgment, whichever occurs first; or (2) by filing a stipulation of dismissal signed by all the parties who have appeared in the action.
Except as provided in this paragraph, an action shall not be dismissed at plaintiff’s instance save upon order of the Court.
. Young v. Wilky Carrier Corp., 3 Cir.,
. Harvey Aluminum, Inc. v. American Cyanamid Co.,
. Kerr v. Compagnie,
. United States v. E. I. DuPont DeNemours & Co., D.C.,