McMillan et al v. Berkebile

Filing 7

ORDER Dismissing Applicant. ORDERED that Applicant Charles Hipps is dismissed as a party to this action. FURTHER ORDERED that the voluntary dismissal is without prejudice and is effective as of February 22, 2013, the date Mr. Hipps filed the 4 [Notice of] Voluntary Dismissal, by Judge Lewis T. Babcock on 2/26/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00369-BNB
SHANE MCMILLAN,
ELLIS MOSHER, and
CHARLES HIPPS,
Applicants,
v.
DAVID BERKEBILE,
Respondent.

ORDER DISMISSING APPLICANT

Applicant Charles Hipps and two other Applicants have submitted an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. On February 12, 2013,
Magistrate Judge Boyd N. Boland ordered the Applicants to cure certain enumerated
deficiencies in this action within thirty days.
On February 22, 2013, Applicant Charles Hipps filed a “[Notice of] Voluntary
Dismissal” (ECF No. 4), stating that he voluntarily dismissed himself from this action,
pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
Fed. R. Civ. P. 41(a)(1) provides that “the plaintiff may dismiss an action without
a court order by filing: (i) a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment . . . .” No answer or motion for summary
judgment has been filed by the Respondent in this action. Further, a voluntary
dismissal under Rule 41(a)(1) is effective immediately upon the filing of a written notice
of dismissal, and no subsequent court order is necessary. See J. Moore, Moore's

Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388
F.2d 501, 507 (10th Cir. 1968). The [Notice of] Voluntary Dismissal, therefore, is
effective on February 22, 2013. Accordingly, it is
ORDERED that Applicant Charles Hipps is dismissed as a party to this action
pursuant to Fed. R. Civ. P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is without prejudice and is
effective as of February 22, 2013, the date Mr. Hipps filed the [Notice of] Voluntary
Dismissal.”
DATED at Denver, Colorado, this

26th

day of

February

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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