Dinnen et al v. Kneen et al
MINUTE ORDER. Plaintiffs JAKS Holdings, LLC and David Adkins were dismissed without prejudice as of the entry of the notice of dismissal. No Court order is necessary. Entered by Judge Philip A. Brimmer on 05/26/17. (jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00882-PAB-STV
MICHAEL W. DINNEN, an individual,
JAKS HOLDINGS, LLC, a Colorado LLC, and
DAVID ADKINS, an individual,
TIMOTHY KNEEN, an individual,
MICHAEL ROBERTS, an individual,
TIMOTHY FLAHERTY, an individual,
CARL VERTUCA, an individual, and
PdC, LLC, a Colorado LLC,
Entered by Judge Philip A. Brimmer
This matter is before the Court on the Notice of Voluntary Dismissal Without
Prejudice of Plaintiffs JAKS Holdings, LLC and David Adkins [Docket No. 76]. The
notice states that, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), JAKS
Holdings, LLC and David Adkins voluntarily dismiss their claims in this action. Id.
Rule 41(a)(1)(A)(i) states that “the plaintiff may dismiss an action without a court
order by filing a notice of dismissal before the opposing party serves either an answer
or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). No defendant has
answered in this case or filed a motion for summary judgment.1 While the language of
Rule 41 does not contemplate the dismissal of some, but not all, plaintiffs, the weight of
authority suggests that a constrictive reading of Rule 41(a) is undesirable in light of the
numerous procedural methods for dismissal of parties. See Van Leeuwen v. Bank of
Defendants’ motion to dismiss is pending in this matter. Docket No. 59.
However, a pending motion to dismiss under Rule 12 does not terminate the right of
voluntary dismissal. See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 2363 n.21 (3d ed). Similarly, defendants’ motion to compel arbitration,
Docket No. 16, did not constitute an answer or motion for summary judgment. Hamilton
v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 1532, 1535 (9th Cir. 1987).
Am., N.A., 304 F.R.D. 691, 697 (D. Utah 2015) (applying “the majority rule” to dismiss
one of several defendants from a case); see also 9 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2362 (3d ed) (“The power to drop some plaintiffs
or some defendants from the suit plainly exists, either in the Civil Rules or in the
inherent power of the district court. Nevertheless it seems undesirable and
unnecessary to invoke inherent power to avoid an artificial limit of Rule 41(a) that is
reached only by an overly literal reading of that rule.”).
Accordingly, plaintiffs JAKS Holdings, LLC and David Adkins were dismissed
without prejudice as of the entry of the notice of dismissal. No Court order is
DATED May 26, 2017.
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