Opinion
Case No. 2:03-CV-872 TS.
June 3, 2004
ORDER CONDITIONALLY GRANTING PLAINTIFF'S MOTION TO DISMISS UNDER RULE 41(A)(2)
This matter is before the court on Plaintiff's Motion to Dismiss this condemnation action pursuant to Fed.R.Civ.P. 41(a)(2).
Pursuant to Utah Code Ann. § 78-34-16, the condemner may abandon a proposed condemnation and dismiss the action without prejudice, provided, however, that as a condition of dismissal the condemner "first compensate the condemnee for all damages he has sustained and also reimburses him in full for all reasonable and necessary expenses actually incurred by condemnee because of the filing of the action by the condemner, including attorneys fees." Plaintiff acknowledges that it will be required to pay such expenses. Defendants have no objection to the dismissal providing that the expenses are paid first. Accordingly, it is therefore
ORDERED that Plaintiff's Motion to Dismiss is CONDITIONALLY GRANTED and this case will be dismissed immediately following the payment of Defendants' expenses as set forth in Utah Code Ann. § 78-34-16. It is further
ORDERED that within 30 days of the entry of this order, Defendants shall file an application for payment of expenses and itemize the expenses, including attorneys fees payable under § 78-34-16. Plaintiff shall file its Response within 20 days after service of the itemized list. A Reply may be filed at the discretion of the movant within seven days after the filing of the Response. Hearing will be set only if the expenses are disputed.