PHILADELPHIA INSURANCE COMPANY v. ALTITUDE FIRE PROTECTION, LLC, 14-cv-03190-KMT. (2015)
Court: District Court, D. Colorado
Number: infdco20150128i04
Visitors: 5
Filed: Jan. 23, 2015
Latest Update: Jan. 23, 2015
Summary: ORDER KATHLEEN M. TAFOYA, Magistrate Judge. This matter is before the court on Defendant Alliance Construction Solutions, LLC's "Unopposed Motion to Dismiss without Prejudice and Certificate of Conferral Pursuant to Local Rule 7.1(a)." (Doc. No. 21, filed January 22, 2015.) Alliance Construction Solutions seeks to dismiss this action without prejudice because the parties have agreed to arbitrate this matter pursuant to a binding arbitration provision. An action can be dismissed voluntarily in
Summary: ORDER KATHLEEN M. TAFOYA, Magistrate Judge. This matter is before the court on Defendant Alliance Construction Solutions, LLC's "Unopposed Motion to Dismiss without Prejudice and Certificate of Conferral Pursuant to Local Rule 7.1(a)." (Doc. No. 21, filed January 22, 2015.) Alliance Construction Solutions seeks to dismiss this action without prejudice because the parties have agreed to arbitrate this matter pursuant to a binding arbitration provision. An action can be dismissed voluntarily in ..
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ORDER
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on Defendant Alliance Construction Solutions, LLC's "Unopposed Motion to Dismiss without Prejudice and Certificate of Conferral Pursuant to Local Rule 7.1(a)." (Doc. No. 21, filed January 22, 2015.) Alliance Construction Solutions seeks to dismiss this action without prejudice because the parties have agreed to arbitrate this matter pursuant to a binding arbitration provision.
An action can be dismissed voluntarily in only two ways after a defendant has filed an answer1: (1) without a court order, through the filing of a stipulation signed by all parties who have appeared, Fed. R. Civ. P. 41(a)(1)(A)(ii); or (2) by court order on terms that the court considers proper, id. (a)(2). Importantly, under either circumstance, the stipulation or request for dismissal must be filed by the plaintiff. Fed. R. Civ. P. 41(a)(1)(A) ("the plaintiff may dismiss an action without a court order . . ."); id. (a)(2) ("an action may be dismissed at the plaintiff's request . . .") (emphasis added). As such, the court is not authorized to grant a motion for voluntary dismissal filed by a defendant, even when the motion is not opposed by the plaintiff.2
Therefore, it is
ORDERED that Defendant Alliance Construction Solutions' "Unopposed Motion to Dismiss without Prejudice and Certificate of Conferral Pursuant to Local Rule 7.1(a)" (Doc. No. 21) is DENIED without prejudice to Plaintiff refiling a proper stipulation or motion to dismiss.3
FootNotes
1. Defendants Altitude Fire Protection LLC, Jeanette Schlenvogt, Timothy Schlenvogt, Daniel Smith, Tina Smith, Kristi Wilkes, and William Wilkes filed an answer on January 12, 2015. (Doc. No. 19.)
2. In addition, although Alliance Construction Services indicates that its Motion to Dismiss is unopposed, the motion does not contain any indication as to whether its co-defendants defendants consent to the dismissal of this action.
3. The parties are advised that, because it would be dispositive of the claims asserted in this action, the court is not authorized to enter an order of dismissal absent the consent of the parties. See 28 U.S.C. § 636; Fed. R. Civ. P. 72. Thus, in the event that Plaintiff refiles the request for dismissal as a motion pursuant to Rule 41(a)(2), rather than a stipulation under Rule 41(a)(1)(A)(ii), the parties shall contemporaneously complete and file the Pilot Project Consent Form (Doc. No. 9) indicating either unanimous consent to the exercise of jurisdiction by a United States Magistrate Judge or that consent has been declined.
Source: Leagle
