Story v. City of Fruita

Filing 17

MINUTE ORDER denying as moot 7 Motion to Dismiss for Failure to State a Claim; denying as moot 15 Motion to Dismiss. Plaintiff's claims against Defendants Angelo, Raugh, Carter, and Lentz are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). By Magistrate Judge Kristen L. Mix on 05/22/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02997-CMA-KLM
ALAN R. STORY,
Plaintiff,
v.
CITY OF FRUITA,
OFFICER YOUNG, Fruita Police,
OFFICER LENTZ, Fruita Police,
MARK ANGELO, Code Enforcement,
DONNA RAUGH, Planning Department, and
SUSAN CARTER, Code Enforcement,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Dismiss [#15]1 (the “Motion”).
Plaintiff, who proceeds in this matter pro se2, filed the Motion, which the Court construes
as a notice of partial dismissal filed under Fed. R. Civ. P. 41(a)(1)(A)(i). Pursuant to Fed.
R. Civ. P. 41(a)(1)(A), “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.” In this case, all Defendants filed motions to dismiss [##7, 10] in lieu
of answers and no Defendant has filed a motion for summary judgment. Accordingly, a
ruling on the Motion is not necessary because Plaintiff may voluntarily dismiss any
Defendant3 by filing a notice of dismissal. See Janssen v. Harris, 321 F.3d 998, 1000 (10th
1

“[#15]” 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 Minute Order.
2

The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
3

In this case, Plaintiff seeks to dismiss the action as to certain Defendants, but is not
dismissing the action as to all Defendants. The Court agrees with its sister court’s analysis in Van
Leeuwen v. Bank of Am., N.A., --- F.R.D. ---, 2015 WL 792310 (D. Utah 2015). While there is a

1

Cir. 2003) (“The filing of a notice of dismissal pursuant to Rule 41(a)(1)(I) does not require
an order of the court.”); De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (noting
that a notice of dismissal or stipulation of dismissal filed under Fed. R. Civ. P. 41(a)(1)(A)
is self-executing and is effective on the date is it filed). However, the Motion was titled and
docketed as a motion. As a result, the Court must take some action with regard to the
filing. Accordingly,
IT IS HEREBY ORDERED that the Motion [#15] is DENIED as moot because
Plaintiff may dismiss any Defendant “without a court order” pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i).
IT IS FURTHER ORDERED that the Clerk of the Court shall modify the docket to
reflect that Plaintiff’s claims against Defendants Angelo, Raugh, Carter, and Lentz are
dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).
IT IS FURTHER ORDERED that Defendant Angelo’s and Defendant Raugh’s Motion
to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) [#7] is DENIED as
moot because all claims against Defendants Angelo and Raugh were dismissed through
the filing of Plaintiff’s Motion [#15].
Dated: May 22, 2015

waning circuit split “on the question of whether a plaintiff must dismiss the entire action under Rule
41(a)(1)(A) or whether it can more surgically dismiss all claims against one of multiple defendants,”
id. at *2, it is logical and efficient to allow the Plaintiff in this case to dismiss all claims against
certain Defendants pursuant to Rule 41(a)(1)(A). As that court noted, the Tenth Circuit has not
directly addressed the question of whether all claims as to one or more, but not all, defendants in
an action can be dismissed. Cf. Benton v. Town of South Fork & Police Dep’t, 553 F.App’x 772,
778 (10th Cir. 2014) (unpublished Order and Judgment) (noting that the appellant “identifies no
error in the district court’s disposition of his motion” that voluntarily dismissed certain defendants
in a multi-defendant action). While the Tenth Circuit has noted that Rule 41(a)(1) “speaks to
dismissal of an action, not just a claim within an action,” Gobbo Farms & Orchards v. Poole Chem.
Co., 81 F.3d 122, 123 (10th Cir. 1996), that case is distinguishable because the plaintiff was
seeking to dismiss only some of the claims asserted against the only defendant. Here, Plaintiff
seeks to dismiss certain Defendants entirely from a multi-defendant action.

2