U-Swirl, Inc. et al v. Cherryberry Enterprises et al

Filing 44

ORDER DISMISSING CASE, by Judge William J. Martinez on 01/14/2016. (cthom, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge William J. Martínez Civil Action No. 15-cv-02147-WJM U-SWIRL, INC., a Nevada Corporation, and U-SWIRL, INTERNATIONAL, INC., a Nevada Corporation Plaintiffs, v. DJRJ ENTERPRISES, LLC, f/k/a CHERRYBERRY ENTERPRISES LLC, an Oklahoma Limited Liability Company, DJRJ CORPORATE, LLC, f/k/a CHERRYBERRY CORPORATE LLC, an Oklahoma Limited Liability Company; DJRJ, LLC, f/k/a CHERRYBERRY LLC, an Oklahoma Limited Liability Company; DALLAS JONES, individually; ROBYN JONES, individually; ULDERICO CONTE, individually; and OTHER UNKNOWN INDIVIDUALS. Defendants. DJRJ ENTERPRISES, LLC, f/k/a CHERRYBERRY ENTERPRISES LLC, an Oklahoma Limited Liability Company; DJRJ CORPORATE, LLC, f/k/a CHERRYBERRY CORPORATE LLC, an Oklahoma Limited Liability Company; and DJRJ, LLC, f/k/a CHERRYBERRY LLC, an Oklahoma Limited Liability Company, Counterclaim Plaintiffs and Third-Party Plaintiffs, v. U-SWIRL, INC., a Nevada Corporation; and ROCKY MOUNTAIN CHOCOLATE FACTORY, INC., a Colorado Corporation, Counterclaim Defendant and Third-Party Defendant. ORDER TERMINATING CASE Before the Court is the Notice of Voluntary Dismissal filed by Defendants Cherryberry Corporate LLC, Cherryberry Enterprises LLC, Cherryberry LLC, DJRJ Corporate, LLC, DJRJ Enterprises, LLC, and DJRJ, LLC, acting in their capacities as Counterclaimants and Third Party Plaintiffs. (ECF No. 42.) Previously, this Court granted Plaintiffs’ Unopposed Motion to Dismiss Claims Without Prejudice. (See ECF Nos. 30, 39.) The effect of that order was to leave pending only Defendants’ counterclaims against Plaintiffs and Defendants’ third-party claims. Defendants, through their Notice of Voluntary Dismissal filed yesterday (ECF No. 42), dismiss their counterclaims and third-party claims without prejudice. The effect of this Notice is to terminate all pending parties, which in turn should terminate this entire action. However, the Court’s communications with counsel reveal a dispute over whether the action should indeed be terminated. Specifically, Plaintiffs claim that Defendants yesterday filed a new action in the Northern District of Oklahoma, re-asserting essentially the same dispute. Plaintiffs therefore believe that they should receive an opportunity to move to revive their original claims. Out of caution, Plaintiffs have also filed a new action in this District (16-cv-89). As the present action currently stands, however, all claims against all parties have been terminated. Accordingly, the Clerk shall TERMINATE this case. The Court expresses no opinion regarding any relief Plaintiffs may wish to seek in light of this order. Dated this 14th day of January, 2016. BY THE COURT: William J. Martínez United States District Judge 2

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