Opinion
Civil Action 22-cv-02937-PAB-STV
04-04-2023
MYRON PETERSON, and ROCKY MOUNTAIN WHEEL REPAIR, LLC, Plaintiffs, v. CALIBER HOLDINGS, LLC, d/b/a CALIBER COLLISION CENTERS, and GINA VILLAREAL, an individual, Defendants.
MINUTE ORDER
Philip A. Brimmer, Chief Judge
This matter is before the Court on the Stipulated Motion for Dismissal, Without Prejudice, as to Plaintiffs' Third Claim for Relief - Violation of 42 U.S.C. § 1981 -against Defendant Gina Villareal Only [Docket No. 22].
Plaintiffs have agreed to voluntarily dismiss their third claim against defendant Gina Villareal without prejudice. Id. at 1. However, if plaintiffs wish to dismiss some, but not all, of the claims in this case, the proper procedure is for plaintiffs to amend their complaint pursuant to Federal Rule of Civil Procedure 15 . See Kristina Consulting Grp., LLC v. Debt Pay Gateway, Inc., 2022 WL 881575, at *2 n.4 (10th Cir. Mar. 25, 2022) (unpublished) (“Although Rule 41(a)(1)(A) refers to dismissal of the ‘action,' the rule permits the dismissal of fewer than all parties so long as all claims against a particular party are dismissed.”); Est. of Hurtado v. Smith, No. 20-cv-03505-DDD-NYW, 2022 WL 2439088, at *2 (D. Colo. July 5, 2022) (“Rule 41 is not a procedurally appropriate way to voluntarily dismiss fewer than all claims against a defendant.... [W]hen a plaintiff seeks to dismiss fewer than all claims against a defendant, the proper procedure is for a plaintiff to amend the complaint pursuant to Federal Rule of Civil Procedure 15.” (internal quotations and citations omitted)); see also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2362 (4th ed. 2022) (stating that many courts have indicated that “a plaintiff who wishes to eliminate some claims but not others should do so by moving to amend pursuant to Rule 15.”).
For the foregoing reasons, it is
ORDERED that the Stipulated Motion for Dismissal, Without Prejudice, as to Plaintiffs' Third Claim for Relief - Violation of 42 U.S.C. § 1981 - against Defendant Gina Villareal Only [Docket No. 22] is DENIED.