McMillan et al v. Berkebile
Filing
30
ORDER Dismissing Case. ORDERED that Applicant Shane McMillan is dismissed as a party to this action. The voluntary dismissal is without prejudice and is effective as of March 5, 2013, the date Mr. McMillan filed ECF No. 15 which the Court cons trues liberally as a notice of voluntary dismissal. FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. All pending motions, 14 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 26 , 28 , and 29 are DENIED as moot, by Judge Lewis T. Babcock on 3/8/13.(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 CASE
An Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 was
filed on February 11, 2013, purportedly by Shane McMIlan, Ellis Mosher, and Charles
Hipps. 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, based on Mr. Hipps’ statements
to the Court that he did not file the § 2241 Application.
On March 6, 2013, the Court entered an Order Dismissing Applicant Ellis
Mosher, pursuant to Fed. R. Civ. P. 41(a)(1), based on Mr. Mosher’s statements to the
Court that he did not file the § 2241 Application.
On March 5, 2013, Applicant Shane McMillan filed a letter with the Court titled
“Motion to Dismiss,” (ECF No. 15), in which he states that he did not file the § 2241
Application. Mr. McMillan requests that the Court dismiss the Application. The Court
liberally construes the Letter/Motion 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/Motion, which the Court construes liberally as a
notice of voluntary dismissal, therefore, is effective on March 5, 2013. Accordingly, it is
ORDERED that Applicant Shane McMillan 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 5, 2013, the date Mr. McMillan filed ECF No. 15, which the Court
construes liberally as a notice of voluntary dismissal. It is
FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. It
is
FURTHER ORDERED that all pending motions are DENIED as moot.
DATED at Denver, Colorado, this 8th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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