Q.B. Associates Ltd. et al v. City of Leadville et al

Filing 78

ORDER. ORDERED that the Joint Motion for Dismissal With Prejudice 51 is Converted into a Rule 15 Motion to Amend and is Granted. ORDERED that the Stipulation for Dismissal with Prejudice 56 is Converted into a Rule 15 Motion to Amend and Grant ed. ORDERED that plaintiffs sixth, ninth, tenth, and twelfth claims for relief are withdrawn as to defendants Mike Bordogna and Dolores Semsack. ORDERED that plaintiffs twelfth claim for relief is withdrawn against defendant Board of County Commis sioners of Lake County. ORDERED that plaintiffs' First, Second, Third, Fourth, Sixth, and Twelfth claims for relief are withdrawn against the City of Leadville. ORDERED that each party shall bear its own attorneys fees and costs by Judge Philip A. Brimmer on 07/31/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01049-PAB-KLM
Q.B. ASSOCIATES LTD. and
EDDIE HALCOMB,
Plaintiffs,
v.
CITY OF LEADVILLE,
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LAKE,
ROBERT HARVEY, Ex Fire Chief,
BUD ELLIOTT, Former Mayor,
TOM TAYLOR, Building Official,
TIGER VOLZ, Former Building Official,
CARL SCHAEFER,
MIKE BORDOGNA,
DOLORES SEMSACK,
BETTY BENSON,
LUE ELLEN BROWNLEE,
DEBBIE DARBY,
RHONDA HUGGINS,
MAX DUARTE,
JAIME STUEVER, and
MIKE LEAKE, Police Chief,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the motion pursuant to Fed. R. Civ. P.
41(a) [Docket No. 51] and the Stipulation for Dismissal [Docket No. 56] of certain claims
against defendants Mike Bordogna, Dolores Semsack, the Board of County
Commissioners, and the City of Leadville.

Plaintiffs request that the Court dismiss certain claims against defendants with
prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. Docket No. 51
at 1; Docket No. 56 at 1. Defendants have filed answers to the amended complaint,
Docket Nos. 35-37, and the pleadings are signed by all of the parties that have
appeared in the case. See Fed. R. Civ. P. 41(a)(1).
Although there is no controlling decision of the Tenth Circuit, the weight of
authority from circuit courts is that Rule 41(a) governs dismissal of all claims against a
defendant and does not allow for piecemeal dismissals. See Gobbo Farms & Orchards
v. Poole Chemical Co., Inc., 81 F.3d 122, 123 (10th Cir. 1996) (noting that there is no
support for the “contention that Rule 41(a) applies to dismissal of less than all claims in
an action”); Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988)
(“a plaintiff may not use Rule 41(a)(1)(i) to dismiss, unilaterally, a single claim from a
multi-claim complaint . . . [instead, we agree with two of our sister circuits] that Federal
Rule of Civil Procedure 15(a) is the appropriate mechanism”). In cases such as this
one, where a plaintiff has attempted to dismiss fewer than all claims against a
defendant, courts typically convert the plaintiff’s motion into a Rule 15 motion to amend
the complaint. Southcrest, L.L.C. v. Bovis Lend Lease, Inc., 2011 WL 1793388, at *3
(N.D. Okla. May 11, 2011); see, e.g., Mechmetals Corp. v. Telex Computer Prods., Inc.,
709 F.2d 1287, 1294 (9th Cir. 1983) (“it is immaterial whether [the] court acts pursuant
to Rule 15(a) or Rule 41(a)(2)”).
Accordingly, the Court will construe plaintiffs’ motion under the standards
applicable to a Rule 15 motion. Rule 15(a) provides that, “after a responsive pleading
has been served, a party may amend its pleading ‘only by leave of court or by written
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consent of the adverse party,’” and “leave shall be freely given when justice so
requires.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006); Fed. R.
Civ. P. 15(a). Rule 15 instructs that courts should grant amendments in the absence of
undue delay, prejudice, futility, or bad faith. Foman v. Davis, 371 U.S. 178, 182 (1962);
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
In the present case, the Court finds no reason to deny the withdrawal of plaintiffs’
Sixth, Ninth, and Tenth claims against defendants Bordogna and Semsack. Similarly,
the Court finds no reason to deny the withdrawal of plaintiffs’ Twelfth claim against the
Board of County Commissioners, Bordogna, and Semsack as well as plaintiffs’ First,
Second, Third, Fourth, Sixth, and Twelfth claims against the City of Leadville.1 Plaintiffs’
motion is unopposed and there has been no undue delay, prejudice, or dilatory motive
on behalf of plaintiffs.
Accordingly, it is
ORDERED that the Joint Motion for Dismissal With Prejudice of Plaintiffs’ Sixth,
Ninth and Tenth Claims for Relief Against Defendants Mike Bordogna and Dolores
Semsack Only and the Twelfth Claim for Relief Against Defendants Board of County
Commissioners of Lake County, Mike Bordogna and Dolores Semsask [Docket No. 51]
is CONVERTED into a Rule 15 Motion to Amend and GRANTED. It is further

Plaintiff’s Twelfth Claim for exemplary damages against the City of Leadville is included
in a prior stipulation filed by the parties. See Docket No. 48. The Court, however, will
dismiss that claim pursuant to this order instead.
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ORDERED that the Stipulation for Dismissal with Prejudice of Claims 1,2,3,4,
and 6 Against Defendant, the City of Leadville [Docket No. 56] is CONVERTED into a
Rule 15 Motion to Amend and GRANTED. It is further
ORDERED that plaintiffs’ sixth, ninth, tenth, and twelfth claims for relief are
withdrawn as to defendants Mike Bordogna and Dolores Semsack. It is further
ORDERED that plaintiffs’ twelfth claim for relief is withdrawn against defendant
Board of County Commissioners of Lake County. It is further
ORDERED that plaintiffs’ First, Second, Third, Fourth, Sixth, and Twelfth claims
for relief are withdrawn against the City of Leadville. It is further
ORDERED that each party shall bear its own attorneys’ fees and costs.

DATED July 31, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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