Mellott v. MSN Communications, Inc.

Filing 130

ORDER granting 121 Plaintiff's Motion to Dismiss with prejudice. Plaintiff's complaint is dismissed with prejudice. Judgment shall not enter until Court resolves the collateral issues still pending. Denying as moot 51 Defendant' s Motion to Dismiss. Defendant granted leave to file a separate and updated motion seeking attorney fees and costs on or before 11/22/10. Plaintiff may file response on or before 12/6/10 and defendant may reply on or before 12/13/10. Defendant's motion and other relevant collateral issues will be taken up at the hearing set 12/21/10 at 8:30, by Judge Philip A. Brimmer on 10/29/10.(gmssl, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Case No. 09-cv-02418-PAB-MJW MELISSA MELLOTT, Plaintiff, v. MSN COMMUNICATIONS, INC., Defendant. ORDER This matter is before the Court on plaintiff's motion to dismiss with prejudice [Docket No. 121]. Pursuant to Federal Rule of Civil Procedure 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Plaintiff seeks to have the Court dismiss the action with prejudice. Defendant objects to any dismissal that would require it to pay its own fees and costs because of its pending motion requesting certain fees and costs [Docket No. 85] and its request for all of its attorney's fees and costs within its motion to dismiss [Docket No. 51]. A dismissal, however, does not prevent the Court from resolving these and other such collateral matters. Upon granting plaintiff's request for dismissal of her complaint, the Court will retain "jurisdiction to `consider collateral issues' including `an award of counsel fees.'" Lorillard Tobacco Co. v. Engida, 611 F.3d 1209, 1218 (10th Cir. 2010) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990)); see Qureshi v. United States, 600 F.3d 523, 525 (5th Cir. 2010) ("For example, the court may,

notwithstanding dismissal of the underlying action, impose sanctions under Federal Rule of Civil Procedure 11, impose costs, impose attorney's fees, or undertake contempt proceedings.") (citations and footnote omitted). Consequently, it is ORDERED that plaintiff's motion to dismiss with prejudice [Docket No. 121] is GRANTED. Plaintiff's complaint is dismissed with prejudice. It is further ORDERED that judgment shall not enter until the Court resolves the collateral issues still pending in this matter. It is further ORDERED that defendant's motion to dismiss [Docket No. 51] is denied as moot. It is further ORDERED that defendant is granted leave to file a separate and updated motion seeking its attorney's fees and costs on or before November 22, 2010, such motion not to exceed 15 pages. Plaintiff may file a response on or before December 6, 2010, such response not to exceed 15 pages. On or before December 13, 2010, defendant may file a reply which does not exceed 10 pages. The Court will take up defendant's motion and any other relevant collateral issues at the hearing already set in this matter for 8:30 a.m. on December 21, 2010. Plaintiff is reminded that she has been ordered to attend the December 21, 2010 hearing.

DATED October 29, 2010. BY THE COURT: s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge 2