ROCKIES EXPRESS PIPELINE LLC v. 77.620 acres more or less et al

Filing 428

OPINION denying Motions to Dismiss 424 425 . Entered by Judge Richard Mills on 2/19/2009. (CC, ilcd)

Friday, 20 February, 2009 11:59:41 AM Clerk, U.S. District Court, ILCD

E-FILED

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION ROCKIES EXPRESS PIPELINE LLC, ) ) Plaintiff, ) ) v. ) ) 77.620 acres more or less, et al., ) ) Defendants. ) ) ) OPINION RICHARD MILLS, U.S. District Judge: Plaintiff Rockies Express seeks to voluntarily dismiss two defendants who have not answered their Complaint. Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), such dismissal would be permissible. However, this is a condemnation case and, accordingly, Federal Rule of Civil Procedure 71.1 applies. Fed. R. Civ. P. 71.1(a). Under Rule 71.1(i)(1)(A), dismissal is permissible without a court order so long as no compensation hearing has begun and "the plaintiff has not acquired title or a lesser interest or taken possession. . ." of the

NO. 08-3127

property.

In light of this Court's prior order granting immediate

possession, dismissal under this provision may be inappropriate because Rockies Express may have "taken possession" of the defendants' property. Thus, Rockies Express must either provide evidence that they have not taken possession of defendants' property or seek dismissal under another provision. E.g., Fed. R. Civ. P. 71.1(i)(1)(B) (stipulation); Fed. R. Civ. P. 71.1(i)(2) (unnecessarily or improperly joined defendants). Ergo, at this juncture the motions [d/e 424, 425] must be DENIED. IT IS SO ORDERED. ENTERED: FOR THE COURT: February 19, 2009 /s Judge Richard Mills United States District Judge