XPAYS, Inc. v. Does 1-17
Filing
16
MINUTE ORDER re: 15 Voluntary Motion to Dismiss Specific Doe Defendant. By Judge Philip A. Brimmer on 3/20/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02418-PAB-KMT
XPAYS, INC.,
Plaintiff,
v.
DOES 1-17,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
Entered by Judge Philip A. Brimmer
This matter is before the Court on plaintiff’s “Voluntary Motion to Dismiss
Specific Doe Defendant” [Docket No. 15], which the Court construes as a notice of
dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) (“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.”) (emphasis added).
Despite Rule 41(a)(1)’s reference to the dismissal of an “action,” the weight of authority
permits a dismissal of all claims pursuant to Rule 41(a)(1)(A) against fewer than all
defendants. See Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148
(5th Cir. 2010); Blaize-Sampeur v. McDowell, 2007 WL 1958909, at *2 (E.D.N.Y. June
29, 2007) (noting that, although the Second Circuit had previously stated otherwise, it
had “since adopted the approach of the majority of courts in other circuits – that is, that
Rule 41(a) does not require dismissal of the action in its entirety” and permits dismissal
of all claims as to a single defendant). Plaintiff requests the entry of an order
dismissing the case as to Doe No. 17 without prejudice. Therefore, the case was
dismissed without prejudice as to Doe No. 17 only as of the entry of the Voluntary
Motion to Dismiss Specific Doe Defendant [Docket No. 15]. No order of dismissal is
necessary.
DATED March 20, 2013.
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