Sailors v. US Marshals Service Dept. et al

Filing 100

ORDER - The plaintiff's motion to dismiss defendants Maxwell Hubka and Cole Jennings (Filing No. 99 ) is granted. The plaintiff's claims against defendants Maxwell Hubka and Cole Jennings are dismissed without prejudice. Defendants Maxw ell Hubka and Cole Jennings have seven days from the date of this order to object to a dismissal without prejudice. Absent objection by defendants Maxwell Hubka and Cole Jennings, the pending motions directed at these defendants (Filing No. 74 , 89 , and 90 ) are denied as moot. Ordered by Senior Judge Joseph F. Bataillon. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THOMAS D. SAILORS,
Plaintiff,

8:18CV189

vs.
ORDER
MAXWELL HUBKA, City of Lincoln Police
Ofc. #1655, in their individual capacities;
COLE JENNINGS, City of Lincoln Police
Ofc. #1650, in their individual capacities;
DANIEL KEYES, Special Administrator of
the Estate of Paul Keyes, US Marshal
#3483, in their individual capacities;
UNITED STATES OF AMERICA, UNITED
STATES MARSHAL SERVICE, and
UNITED STATES ATTORNEY GENERAL,
Defendants.
This matter comes before the Court on the plaintiff’s Motion to Dismiss defendants
Maxwell Hubka and Cole Jennings, Filing No. 99. There is presently pending a motion
for a summary judgment of dismissal as to those defendants.

Filing No. 74.

The

defendants have been granted an extension of time to March 16, 2020, to file a reply to
defendants Hubka’s and Jennings’s opposition to the motion. Filing No. 98, text order.
The plaintiff seeks a dismissal without prejudice.
Leave of court is required for a voluntary dismissal by the plaintiff after an answer
or motion for summary judgment is filed by a defendant. Fed. R. Civ. P. 41(a)(1) & (2).
Ordinarily such a dismissal is without prejudice. Fed. R. Civ. P. (a)(2). Granting the
motion to dismiss without prejudice will obviate the need for the defendants to reply to the
plaintiff’s opposition to their motion.

Also pending is a motion to strike portions of

defendant Hubka’s affidavit, also rendered moot by the dismissal. Filing No. 90. As well

as a pending motion to strike portions of defendant Jennings’s affidavit, also rendered
moot by the dismissal. Filing No. 89. Under the circumstances, the Court finds it
appropriate to grant the plaintiff’s motion, without prejudice to defendants Hubka’s and
Jennings’s right to object to the dismissal without prejudice within seven days of the date
of this order. Accordingly,
IT IS THEREFORE ORDERED that:
1.

The plaintiff’s motion to dismiss defendants Maxwell Hubka and Cole

Jennings (Filing No. 99) is granted.
2.

The plaintiff’s claims against defendants Maxwell Hubka and Cole Jennings

are dismissed without prejudice.
3.

Defendants Maxwell Hubka and Cole Jennings have seven days from the

date of this order to object to a dismissal without prejudice.
3.

Absent objection by defendants Maxwell Hubka and Cole Jennings, the

pending motions directed at these defendants (Filing No. 74, 89, and 90) are denied as
moot.
Dated this 4th day of March, 2020.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge