Hess v. Rocky Mountain Romangus, Inc.

Filing 18

ORDER granting 17 Plaintiff's Motion to Dismiss, pursuant to Fed. R. Civ. P. 41(a)(2), by Magistrate Judge Nina Y. Wang on 03/15/16. This case is hereby dismissed without prejudice with each party to bear its own attorneys' fees and costs. The Clerk of the Court is directed to close the case. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02599-NYW
GREG HESS,
Plaintiff,
v.
ROCKY MOUNTAIN ROMANGUS, INC., a Colorado corporation,
Defendant.
ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on Plaintiff Greg Hess’s Motion to Dismiss Without
Prejudice (the “Motion to Dismiss”). [#17, filed Mar. 14, 2016].
Plaintiff requests in the Motion to Dismiss that the court enter an order dismissing this
case without prejudice under Fed. R. Civ. P. 41(a)(2), with each party to pay its costs and
attorneys’ fees. [#17 at ¶ 6].

Plaintiff represents that he has filed an amended complaint in

another case currently pending in the District of Colorado, Hess v. Michael A. Hunt, Sr. et al.,
No. 15-cv-02597-RPM, which asserts the same claims against Defendant Rocky Mountain
Romangus, Inc. that are currently pending in this case. [#17 at ¶¶ 8-9]. See also, Hess v. Hunt,
Civil Action No. 15-cv-02597-RPM, ECF No. 6. Accordingly, Plaintiff requests that the court
dismiss the claims in this case without prejudice to avoid duplication of effort of the court and
the parties. [#17 at ¶ 10]. Plaintiff represents that he has conferred with Defendant and that
Defendant does not take a position on the Motion to Dismiss. [#17 at ¶ 1].

Pursuant to Fed. R. Civ. P. 41(a)(2), “an action may be dismissed at the plaintiff’s request
. . . by court order, on terms that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff’s motion to dismiss, the action may be
dismissed over the defendant’s objection only if the counterclaim can remain pending for
independent adjudication.” According to Rule 41(a)(2), “[u]nless the order states otherwise, a
dismissal under this paragraph (2) is without prejudice.”
The court finds that the terms proposed by Plaintiff are proper and that dismissing the
present case to allow Plaintiff to proceed with the same claims against Defendant in the Hunt
case would preserve judicial resources and the resources of the Parties. The court also notes that
Defendant does not have any pending counterclaims in this case.
On the basis of the foregoing, IT IS ORDERED that:
(1)

Plaintiff’s claims for relief for breach of contract and civil theft pursuant to Colo.

Rev. Stat. §§ 18-4-401 and 405 are hereby DISMISSED WITHOUT PREJUDICE; and
(2)

The case is dismissed in its entirety with each Party to bear its own attorneys’ fees

and costs; and
(3)

The Clerk of Court is directed to close the case.

DATED: March 15, 2016

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

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