Nitzkorski v. Columbine Emergency Medical Services Inc., et al

Filing 81

ORDER denying 63 Motion for Attorney Fees and denying 64 Motion to Dismiss Party. ORDERED by Judge Raymond P. Moore on 5/1/2019.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:17-CV-01158-RM-SKC
GUNNAR NITZKORSKI,
STEPHEN PERNICE, and
JOSEPH GROS, individually and on behalf of others similarly situated,
Plaintiffs,
v.
COLUMBINE EMERGENCY MEDICAL SERVICES INC. d/b/a Columbine Ambulance
Service, and
VINCENT CISSELL,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter comes before the Court on Defendants’ Motion for Fees and Costs Relating
to Dismissal of Defendant Columbine Oxygen (ECF No. 63) and Plaintiffs’ Motion to Dismiss
Columbine Oxygen Service, Inc. with Prejudice and Without Costs or Fees (ECF No. 64). For
the reasons given below, both motions are denied.
These motions stem from this Court’s September 21, 2018, Order (ECF No. 60), which
arose under unusual circumstances, as described therein. In short, the Order dismissed
Columbine Oxygen Service, Inc. from this case without prejudice, subject to three conditions—
the first two are irrelevant here because the claims against Columbine Oxygen have not been be
refiled in a new case. The third condition is that “plaintiff shall reimburse Columbine Oxygen

all attorneys fees and costs incurred in this action with respect to plaintiff’s request to voluntarily
dismiss Columbine Oxygen.” (Id. at 4.) The Order further provides that should Plaintiffs fail to
satisfy this condition, the Court will convert the dismissal into one with prejudice “upon motion
by Columbine Oxygen.” (Id.)
Plaintiff has declined to reimburse Columbine Oxygen. Thus, at this juncture, it has the
option of converting the dismissal to one with prejudice by filing a motion with the Court.
Had the Court determined that granting Columbine Oxygen fees and costs was
appropriate, it would have done so in its previous Order. Instead, it gave Columbine Oxygen the
option of filing a motion for attorney fees and costs and, if it did so, Plaintiffs the option of either
reimbursing Columbine Oxygen (in which case the dismissal would remain without prejudice) or
declining to reimburse Columbine Oxygen (in which case Columbine Oxygen could have the
dismissal converted to one with prejudice).
Had the Court determined that dismissing Columbine Oxygen without prejudice was
appropriate, it would have done so without the conditions stated in the previous Order. Instead,
the Court determined that Plaintiffs were not entitled to unconditional dismissal without
prejudice because their request was procedurally improper. Plaintiffs cite no authority for the
proposition that converting a dismissal without prejudice to one with prejudice (at their request)
is appropriate under these circumstances. Moreover, as noted in the Order, “there has been
plenty of paper filing for something that should never have happened in the way it did.” (Id.
at 2.) Plaintiffs’ latest change of position is an apparent attempt to circumvent the conditions

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imposed in the Order and, unfortunately, a successful attempt to circumvent the Order’s intent,
which was “to avoid further unnecessary filings.” (Id.)
Accordingly, both motions (ECF Nos. 63, 64) are
DENIED. DATED this 1st day of May, 2019.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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