v. Iron Workers District Council of Tennessee Valley & Vicinity Pension Plan et al

Filing 60

ORDER CONCERNING JOINT MOTION FOR VOLUNTARY DISMISSAL. That the parties' 59 proposed voluntary dismissal of this action is APPROVED. On or before 2/10/2012, the plaintiff SHALL PROVIDE to all other parties the text of a Notice to Shareholders describing the proposed voluntary dismissal of this case, by Judge Robert E. Blackburn on 2/3/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 09-cv-02914-REB-BNB
IRON WORKERS DISTRICT COUNCIL OF TENNESSEE VALLEY & VICINITY
PENSION PLAN, Derivatively on Behalf of LEVEL 3 COMMUNICATIONS, INC.,
Plaintiff,
v.
JAMES Q. CROWE,
KEVIN J. O’HARA,
SUNIT S. PATEL,
MICHAEL B. YANNEY,
JAMES O. ELLIS JR.,
RICHARD R. JAROS,
ROBERT E. JULIAN,
ARUN NETRAVALI,
JOHN T. REED,
WALTER SCOTT, JR., and
ALBERT C. YATES,
Defendants,
and
LEVEL 3 COMMUNICATIONS, INC., a Delaware corporation,
Nominal Defendant.

ORDER CONCERNING JOINT MOTION FOR VOLUNTARY DISMISSAL
Blackburn, J.
This matter is before the court on the parties’ Unopposed Joint Motion for
Voluntary Dismissal Pursuant To Federal Rules of Civil Procedure 23.1(c) and
41(a) [#59]1 filed February 2, 2012. The parties seek an order approving the voluntary

1

“[#59]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

dismissal of this shareholder derivative action. The proposed dismissal would be with
prejudice as to the plaintiff and without prejudice as to the nominal defendant, Level 3
Communications, Inc. The parties note that a parallel shareholder derivative action is
pending in state court. In re Level 3 Communications Inc. Derivative Litigation,
Lead Case No. 2009CV59 (District Court, Broomfield County, Colorado).
FED. R. CIV. P. 23.1(c) provides:
A derivative action may be settled, voluntarily dismissed, or compromised
only with the court’s approval. Notice of a proposed settlement, voluntary
dismissal, or compromise must be given to shareholders or members in
the manner that the court orders.
The parties argue that notice of the proposed voluntary dismissal of this case, as
required by Rule 23.1(c), is not required in this case. They contend that notice is not
required because the proposed dismissal will be without prejudice as to nominal
defendant Level 3, and a parallel derivative action is pending in state court. The court
agrees that the need for notice in this case is minimal. However, the court cannot
ignore the explicit and mandatory notice requirement of Rule 23.1(c). Therefore, the
court will require that notice of the proposed voluntary dismissal of this case be posted
on the website of the nominal defendant, Level 3 Communications, Inc., before the court
determines, as a final matter, whether or not to approve the voluntary dismissal of this
case.
THEREFORE, IT IS ORDERED as follows:
1. That the parties’ proposed voluntary dismissal of this action is APPROVED
preliminarily;
2. That on or before February 10, 2012, the plaintiff SHALL PROVIDE to all
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other parties the text of a Notice to Shareholders describing the proposed voluntary
dismissal of this case;
3. That the Notice to Shareholders SHALL INCLUDE the following information:
a. A brief description of the claims asserted in the above-captioned
shareholder derivative suit;
b. A copy of the parties’ Unopposed Joint Motion for Voluntary
Dismissal Pursuant To Federal Rules of Civil Procedure 23.1(c) and
41(a) [#59] filed February 2, 2012;
c. A copy of this order;
d. A statement that any objection to the voluntary dismissal of this case
must be filed with this court on or before March 1, 2012;
e. A statement that any objection filed must be filed in writing, and must
include (i) the caption of this case, (ii) the name of the objecting
shareholder, and (iii) a statement of the basis for the objection.
4. That on or before February 15, 2012, nominal defendant Level 3
Communications, Inc. SHALL POST on its website a copy of the Notice to
Shareholders;
5. That a link to the Notice to Shareholders, which link shall be titled “Notice to
Shareholders,” SHALL APPEAR on the opening page of the website of nominal
defendant Level 3 Communications, Inc.;
6. That the Notice to Shareholders SHALL REMAIN posted on the website of
nominal defendant Level 3 Communications, Inc. until March 1, 2012;
7. That on or before March 8, 2012, the plaintiff SHALL FILE with the court a
brief motion seeking a final order of dismissal in this case;

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February 3, 2012

8. In that motion, the plaintiff SHALL CERTIFY that the parties

have complied with the notice requirements stated in this order.
Dated February 3, 2012, at Denver, Colorado.
BY THE COURT:

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