Peiker Acustic, Inc. et al v. Kennedy

Filing 159

Nunc Pro Tunc ORDER. Plaintiff's Motion for Voluntary Dismissal with Prejudice 112 is granted. Their defamation claim against Patrick Kennedy is Dismissed With Prejudice by Judge John L. Kane on 04/04/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 10-cv-02083-JLK
PEIKER ACUSTIC, INC. and
PEIKER ACUSTIC GMBH & CO. KG,
Plaintiffs/Counterclaim Defendants,
v.
PATRICK KENNEDY,
Defendant/Counterclaimant.

NUNC PRO TUNC ORDER
Kane, J.
This matter is currently before me on Plaintiffs’ Motion for Voluntary Dismissal with
Prejudice (doc. 112). Plaintiffs seek dismissal of their claim for defamation against Defendant
Patrick Kennedy.
Because Defendant objects to the voluntary dismissal of Plaintiffs’ claims, Plaintiffs’
complaint may be dismissed only by a court order. Fed. R. Civ. P. 41(a)(2). Furthermore,
because Defendant has pleaded a counterclaim before being served with Plaintiffs’ motion,
Plaintiffs’ claim may be dismissed only if the counterclaim can remain pending for independent
adjudication. Id.
Upon consideration of Plaintiffs’ motion and the grounds state therein, their motion is
GRANTED. Their defamation claim against Patrick Kennedy is DISMISSED WITH
PREJUDICE.

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In light of Defendant’s objection, however, I condition this dismissal upon the following
terms:
1.

2.
3.
4.

Plaintiffs relinquish any past, present, or future right to sue (“covenant not
to sue”) Defendant for any statement either in or arising out Defendant’s
book, Ideajacked, his publication of the book, or this litigation.
Plaintiffs’ covenant not to sue extends to all jurisdictions, both foreign and
domestic.
Plaintiffs’ covenant not to sue extends to criminal, civil, and
administrative proceedings.
Plaintiffs’ covenant not to sue extends to both oral and written statements
by Defendant.

Issues relating to the allocation of attorney fees and costs will be reserved pending resolution of
Defendant’s counterclaims for abuse of process and exemplary damages.

DATED: April 4, 2012 (Nunc Pro Tunc)

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge

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