Shirazi v. Travelers Casualty Insurance Company of America

Filing 20

MINUTE ORDER granting 19 Stipulation for Dismissal of Certain Claims for Relief. ORDERED that plaintiff's Complaint [Docket No. 3 at 4-11] is hereby amended to delete plaintiff's first, third, and fourth claims for relief. It is further ORDERED that plaintiff's first, third, and fourth claims for relief are DISMISSED with prejudice. It is further ORDERED that, on or before November 6, 2014, plaintiff shall file an amended complaint reflecting the above amendments, by Judge Philip A. Brimmer on 10/31/2014.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01955-PAB-CBS
ABE SHIRAZI,
Plaintiff,
v.
TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA,
Defendant.

MINUTE ORDER
Entered by Judge Philip A. Brimmer
This matter is before the Court on the parties’ Stipulation for Dismissal of Certain
Claims for Relief [Docket No. 19]. The stipulation seeks to dismiss plaintiff’s first, third,
and fourth claims for relief with prejudice.
Although the stipulation seeks dismissal of the subject claims pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Rule 41 does not apply to the dismissal
of less than all claims in an action. Gobbo Farms & Orchards v. Poole Chemical Co.,
Inc., 81 F.3d 122, 123 (10th Cir. 1996). Rather, the proper procedure f or voluntarily
dismissing less than all claims against a defendant is for plaintiff to amend the
complaint pursuant to Fed. R. Civ. P. 15. See Ethridge v. Harbor House Restaurant,
861 F.2d 1389, 1392 (9th Cir. 1988) (“a plaintif f 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”); see also 9 Charles Alan Wright et al., Federal Practice and Procedure
§ 2362 (3d ed. 2014). Thus, the Court will construe the stipulation as a joint motion to
amend the complaint to delete plaintiff’s first, third, and fourth claims for relief. See
Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., No. 09-cv-00970-PAB-KMT, 2010 WL
3630118, at *3 (D. Colo. Sep. 9, 2010) (collecting cases).
Under Rule 15, the Court must freely give leave to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). The Court is otherwise satisfied that no reason
exists to deny leave to amend to delete the subject claims. See Foman v. Davis, 371
U.S. 178, 182 (1962). Because the stipulation states that the parties hav e agreed to
dismissal of the subject claims with prejudice, the Court will dismiss the subject claims
with prejudice as a condition of the amendment contemplated by the stipulation. See

Mountain View Pharmacy v. Abbott Labs., 630 F.2d 1383, 1386 (10th Cir. 1980)
(discussing court’s discretion to “impose reasonable conditions on a grant of leave to
amend” (quotation omitted)); 6 Charles Alan Wright et al., Federal Practice and
Procedure § 1486 (3d ed. 2014) (recognizing court’s power under Rule 15 to exercise
discretion in imposing conditions on the allowance of a proposed amendment). It is
therefore
ORDERED that the parties’ Stipulation for Dismissal of Certain Claims for Relief
[Docket No. 19] is converted to a Rule 15 motion to amend and is GRANTED. It is
further
ORDERED that plaintiff’s Complaint [Docket No. 3 at 4-11] is hereby amended to
delete plaintiff’s first, third, and fourth claims for relief. It is further
ORDERED that plaintiff’s first, third, and fourth claims for relief are DISMISSED
with prejudice. It is further
ORDERED that, on or before November 6, 2014, plaintiff shall file an amended
complaint reflecting the above amendments.

DATED October 31, 2014.

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