Opinion
Civil Action No. 06-cv-00278-WDM-BNB.
July 20, 2006
ORDER
This matter is before me on Plaintiff Sharon Furnish's (Furnish) Withdrawal of Second and Third Claims for Relief Asserted Against Defendant U.S. Bank National Association (U.S. Bank), filed July 10, 2006.
This pleading cannot be properly construed as a motion to voluntarily dismiss pursuant to Fed.R.Civ.P. 41(a)(2). Rule 41 applies only to situations where a plaintiff wishes to dismiss an entire action. Fed.R.Civ.P. 41; see also Gobbo Farms Orchards v. Poole Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996) ("[Rule 41] speaks to dismissal of an action, not just a claim within an action."); Ethridge v. Harbor House Rest., 861 F.3d 1389, 1392 (9th Cir. 1988) ("[P]laintiff may not use Rule 41(a)(1)(i) to dismiss, unilaterally, a single claim from a multi-claim complaint."). Instead, "[rule] 15(a) is the appropriate mechanism `[w]here a plaintiff desires to eliminate an issue, or one or more but less than all of several claims, but without dismissing as to any of the defendants.'" Ethridge, 861 F.3d at 1392 (quoting 5 J. Moore, J. Lucas J. Wicker, Moore's Federal Practice ¶ 41.06-1, at 41-83 to -84 (1987)).
I construe Plaintiff's Withdrawal of Second and Third Claims for Relief Asserted Against Defendant U.S. Bank National Association (U.S. Bank), filed July 10, 2006 (Docket No. 35), as a motion for leave to amend her Complaint pursuant to Rule 15(a). Defendant has not objected. Accordingly, the motion is granted and Plaintiff is ordered to file no later than August 1, 2006, an Amended Complaint removing Defendant U.S. Bank as a defendant to Plaintiff's second and third claims for relief.