McMillan et al v. Berkebile
Filing
24
ORDER Dismissing Applicant. ORDERED that Applicant Ellis Mosher is dismissed as a party to this action. The voluntary dismissal is without prejudice and is effective as of March 4, 2013, the date Mr. Mosher filed 13 , which the Court construes liberally as a notice of voluntary dismissal, by Judge Lewis T. Babcock on 3/6/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00369-BNB
SHANE MCMILLAN,
ELLIS MOSHER, and
CHARLES HIPPS,
Applicants,
v.
DAVID BERKEBILE,
Respondent.
ORDER DISMISSING APPLICANT
Applicant Ellis Mosher and two others filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 on February 11, 2013. On February 12, 2013,
Magistrate Judge Boyd N. Boland ordered the Applicants to cure certain enumerated
deficiencies in this action within thirty days.
On February 26, 2013, the Court entered an Order Dismissing Applicant Charles
Hipps, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
On March 4, 2013, Applicant Ellis Mosher filed a Letter with the Court (ECF No.
13), requesting that this action “be immediately expunged from all court and computer
records, as it was filed fraudulently, without my consent.” (Id.). The Court liberally
construes the letter as a notice of voluntary dismissal pursuant to Fed. R. Civ. P.
41(a)(1).
Fed. R. Civ. P. 41(a)(1) provides that “the plaintiff may dismiss an action without
a court order by filing: (i) a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment . . . .” No answer or motion for summary
judgment has been filed by the Respondent in this action. Further, a voluntary
dismissal under Rule 41(a)(1) is effective immediately upon the filing of a written notice
of dismissal, and no subsequent court order is necessary. See J. Moore, Moore's
Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2d
501, 507 (10th Cir. 1968). The Letter, which the Court construes liberally as a notice of
voluntary dismissal, therefore, is effective on March 4, 2013. Accordingly, it is
ORDERED that Applicant Ellis Mosher is dismissed as a party to this action
pursuant to Fed. R. Civ. P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is without prejudice and is
effective as of March 4, 2013, the date Mr. Mosher filed ECF No. 13, which the Court
construes liberally as a notice of voluntary dismissal.
DATED at Denver, Colorado, this 6th
day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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