United States of America v. Farstvedt et al

Filing 8

MEMORANDUM AND ORDER granting in part and denying in part 5 Motion to Dismiss Party. The court grants plaintiff leave to file an amended complaint omitting Mr. Helms as a defendant. But the court denies plaintiff's request to dismiss Mr. Helms because Rule 41 does not allow the court to take such action. Signed by District Judge Daniel D. Crabtree on 5/1/2018. Mailed to pro se party Defendants Shirley L. Farstvedt and Sammy Leroy Best by regular mail. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 18-4016-DDC-GEB

SHIRLEY L. FARSTVEDT, et al.,
Defendants.
____________________________________

MEMORANDUM AND ORDER
Plaintiff the United States of America asks the court to dismiss defendant Robert W.
Helms from this foreclosure action because he no longer has an interest in the property subject to
foreclosure. Doc. 5. While plaintiff does not cite a specific rule authorizing the court to take this
action, it appears plaintiff implicitly invokes Fed. R. Civ. P. 41(a), which governs voluntary
dismissals.
The Tenth Circuit, in Gobbo Farms & Orchards v. Poole Chemical Co., 81 F.3d 122
(10th Cir. 1996), held that Rule 41(a) “speaks to dismissal of an action, [and] not just a claim
within an action.” District courts have interpreted Gobbo Farms differently, but the Tenth
Circuit has not clarified yet whether a plaintiff can employ Rule 41 to dismiss fewer than all
defendants. Hoping to bring a pragmatic and efficient solution to bear, the court, in its
discretion, elects to construe Doc. 5 as a Rule 15 motion to amend plaintiff’s Complaint to omit
the claim against Mr. Helms. Rule 15(a)(2) provides, “A party may amend its pleading only
with the opposing party's written consent or the court's leave.” With the court’s leave, plaintiff

may eliminate those claims against Mr. Helms no longer at issue in the case by filing an
amended complaint within 14 days of the date of this Order.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion to
Dismiss Party Robert W. Helms (Doc. 5) is granted in part and denied in part. The court grants
plaintiff leave to file an amended complaint omitting Mr. Helms as a defendant. But the court
denies plaintiff’s request to dismiss Mr. Helms because Rule 41 does not allow the court to take
such action.
IT IS SO ORDERED.
Dated this 1st day of May, 2018, at Topeka, Kansas.

s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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