Opinion
Civil Action No. 13-cv-00369-BNB
02-26-2013
SHANE MCMILLAN, ELLIS MOSHER, and CHARLES HIPPS, Applicants, v. DAVID BERKEBILE, Respondent.
ORDER DISMISSING APPLICANT
Applicant Charles Hipps and two other Applicants have submitted an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. 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 22, 2013, Applicant Charles Hipps filed a "[Notice of] Voluntary Dismissal" (ECF No. 4), stating that he voluntarily dismissed himself from this action, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
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 [Notice of] Voluntary Dismissal, therefore, is effective on February 22, 2013. Accordingly, it is
ORDERED that Applicant Charles Hipps 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 February 22, 2013, the date Mr. Hipps filed the [Notice of] Voluntary Dismissal."
DATED at Denver, Colorado, this 26th day of February, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court