Cook v. Peak Endeavors LLC et al

Filing 18

ORDER: IT IS THEREFORE ORDERED denying Plaintiff/Judgment Creditor/Garnishor Melissa L. Cook's request in the Notice of Lodging Form of Order (Doc. #16 ) for dismissal of this action. IT IS FURTHER ORDERED that, by August 12, 2022, Plaintiff shall either file an amended pleading, as previously ordered by the Court (Doc. #13 ), or a stipulation of dismissal signed by all parties under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). If Plaintiff fails to make such a filing, Garnishee Aegis Insurance Company may seek judgment in its favor for Plaintiff's failure to prosecute this action. (See Order for full details.) Signed by Judge John J Tuchi on 7/29/22. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melissa L. Cook,
Plaintiff,

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v.

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Peak Endeavors LLC, et al.,

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No. CV-22-08104-PCT-JJT
ORDER

Defendants.

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At issue is Plaintiff/Judgment Creditor/Garnishor Melissa L. Cook’s Notice of
Lodging Form of Order (Doc. 16).

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As the Court stated in its prior Order (Doc. 13), this is a garnishment action brought

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by Plaintiff/Garnishor Melissa L. Cook, and after proper removal by Garnishee Aegis

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Insurance Company, the Federal Rules of Civil Procedure apply to this action. The Writ of

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Garnishment (Doc. 1-3) and Answer thereto (Doc. 4) are presently the operative pleadings.

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In the prior Order (Doc. 13), the Court ordered Plaintiff to file an amended pleading to

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clarify the claims in this matter. Instead, Plaintiff filed a Notice of Lodging Form of Order,

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in which Plaintiff seems to state that, upon withdrawal of her previously filed Response

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(Doc. 12) to Aegis’s Objection to Plaintiff’s request for a hearing on her objection to

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Aegis’s Answer, this action is somehow over. (Docs. 16, 16-1.)

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To begin with, Plaintiff’s Response brief (Doc. 12) did not trigger this action;

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Plaintiff’s Writ of Garnishment (Doc. 1-3) did. Thus Plaintiff’s withdrawal of the Response

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brief did not terminate the action. Next, the filing of a “Form of Order” is not contemplated

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by the Federal Rules of Civil Procedure as a way for a plaintiff to voluntarily dismiss an

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action pending before this Court. Rule 41 provides that a plaintiff may unilaterally

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voluntarily dismiss an action only when no answer or motion for summary judgment has

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been filed. Fed. R. Civ. P. 41(a)(1)(A)(i). Otherwise, in an instance such as this where an

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Answer has been filed (Doc. 4), a plaintiff can only request dismissal of an action by filing

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“a stipulation signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii).

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As a result, this action remains pending, and Plaintiff has not timely filed the

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amended pleading as required by the Court. (Doc. 13.) If the parties have agreed to

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dismissal of this action, they may file a stipulation to that effect. Otherwise, Plaintiff’s

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failure to file an amended pleading as ordered by the Court will result in a dismissal for

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failure to prosecute this action and judgment in favor of Garnishee Aegis Insurance

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Company.

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IT IS THEREFORE ORDERED denying Plaintiff/Judgment Creditor/Garnishor

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Melissa L. Cook’s request in the Notice of Lodging Form of Order (Doc. 16) for dismissal

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of this action.

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IT IS FURTHER ORDERED that, by August 12, 2022, Plaintiff shall either file

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an amended pleading, as previously ordered by the Court (Doc. 13), or a stipulation of

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dismissal signed by all parties under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). If

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Plaintiff fails to make such a filing, Garnishee Aegis Insurance Company may seek

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judgment in its favor for Plaintiff’s failure to prosecute this action.

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Dated this 29th day of July, 2022.

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Honorable John J. Tuchi
United States District Judge

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