Free Notice of Voluntary Dismissal of Case - District Court of Colorado - Colorado

Case 1:01-cv-02354-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02354EWN-MJW UNITEDGLOBALCOM,INC.; UIH ASIA/PACIFIC COMMUNICATIONS, INC.; AUSTAR UNITED COMMUNICATIONS, LIMITED; AUSTAR ENTERTAINMENT PTY LTD; CTV PTY LIMITED; AND STV PTY LIMITED, Plaintiffs, v. ROBERT G. McRANN Defendant.

PLAINTIFFS' NOTICE OF DISMISSAL PURSUANT TO RULE 41(a)(1)(i) or ALTERNATIVE MOTION FOR DISMISSAL PURSUANT TO 41(a)(2)

Undersigned counsel certifies that he has consulted with opposing counsel Sander, and been informed that Mr. Sander does object to the relief sought here. Notice of Dismissal Plaintiffs, through counsel Jacobs Chase Frick Kleinkopf and Kelley, hereby give notice that they voluntarily dismiss this action pursuant to F.R.C.P. 41(a)(1)(i). As a basis therefore, Plaintiffs state that this action was originally filed on December 12, 2001. The matter was stayed and administratively closed by order of the Court on September 2, 2003. Defendant Robert G. McRann never filed any answer or counterclaims to the Complaint. Instead, on January 2, 2002, McRann filed a "Motion to Dismiss Complaint or Stay Proceedings, or Alternatively, for Summary Judgment." McRann's dismissal motion relied on the existence of a prior action filed by Mr. McRann

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before the Industrial Relations Commission of New South Wales, Australia. Mr. McRann's dismissal motion did not seek a determination on the merits of Plaintiffs' claims, but merely asked that the Court dismiss or stay the instant action based on the existence of the prior Australian action on the grounds of international abstention. Rule 41(a)(1)(i) provides that "an action may be dismissed by the plaintiff without order of court by the filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." A plaintiff's right of voluntary dismissal is not terminated when defendant files motion to dismiss or a motion to stay. See 9 Wright & Miller, Federal Practice and Procedure Civil 2d §2363; Hamilton v. Shearson-Lehman American Express, Inc., 813 F.2d 1532 (9th Cir. 1987) (stay pending arbitration). While this Court did state that McRann's Motion to Dismiss was converted to a Summary Judgment motion because materials outside the pleadings were being considered (see Order and Memorandum of Decision of September 2, 2003, at 13), the merits of Plaintiffs' breach of contract and declaratory judgment claims against Mr. McRann were never addressed. Rule 12(b) notes that only those motions to dismiss asserting failure to state a claim under Rule 12(b)(6) may be "treated by the court as a motion for summary judgment and disposed of as provided under Rule 56" if matters outside the pleadings are considered. Thus, McRann's Motion to Dismiss or Stay Proceedings, even if it did include materials from outside the pleadings which were considered by the Court, should not be considered the kind of filing that would prevent Plaintiff from voluntarily dismissing pursuant to Rule 41(a)(1)(i). See Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137 (7th Cir. 1978) (finding that district court did not

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adjudicate merits in granting defendant's motion to stay proceedings; thus plaintiff could dismiss by notice). Accordingly, this matter should be deemed dismissed pursuant to F.R.C.P. 41(a)(1)(i), as of the date of the filing of this Notice of Dismissal. Netwig v. Georgia Pacific Corp., 375 F.3d 1009 (10th Cir. 2004) ("This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court.").

Alternative Motion to Dismiss Pursuant to Rule 41(a)(2) To whatever extent the Court is not prepared to accept a voluntary Notice of Dismissal pursuant to Rule 41(a)(1)(i), Plaintiffs move for dismissal pursuant to Rule 41(a)(2) ("Voluntary Dismissal by Order of the Court."). The Court may dismiss an action on motion of a Plaintiff pursuant to Rule 41(a)(2), on "such terms and conditions as the court deems proper." The Rule also states that "[i]f a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court." As noted, Defendant McRann has filed no counterclaim to Plaintiff's Complaint. When considering a motion to dismiss without prejudice, the important aspect is whether the opposing party "will suffer prejudice in the light of the valid interests of the parties." Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993). Factors to be considered include the opposing party's effort and expense of preparation for trial, excessive delay or

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lack of diligence on the part of the movant in prosecuting the action, and the sufficiency of the explanation for the requested dismissal. Id. McRann has spent little to no money preparing for trial in this case. He filed a Motion to Dismiss or to Stay, which was granted. There has been no delay on UGC's part in prosecuting this matter, as the case was stayed at McRann's request. As far as Plaintiffs' basis for the dismissal, it is the following: On May 18, 2006, the High Court of Australia issued an order prohibiting the Industrial Relations Commission of New South Wales from hearing Mr. McRann's claim. A summary of that decision is attached hereto as Exhibit 1. The matter before the Industrial Relations Commission has not been formally dismissed or discontinued (Mr. McRann would have to take affirmative steps for the matter to be formally dismissed or discontinued). However, Mr. McRann is prohibited from advancing his case before the Industrial Relations Commission. This Court has decided that it would not exercise jurisdiction over UGC's declaratory judgment action. See September 2, 2003, Order and Memorandum of Decision at 26. Thus, UGC's only remaining affirmative claim against McRann is UGC's claim for damages against McRann for violating a signed release agreement by asking the Industrial Relations commission to void the release. As a consequence of the judgment delivered by the High Court of Australia, McRann has been ordered to pay UGC's attorneys fees at both the intermediate and final appellate levels in the Australian litigation. In addition, when (or if) he acts to formally dismiss or terminate the Industrial Relations Commission proceeding, McRann also will be ordered to pay the costs and fees incurred by UGC at the level of the Industrial Relations Commission. In light of the

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sizeable (albeit yet to be quantified) attorneys fees already ordered to be paid by McRann in Australia, as well as the potential attorneys fee ordered to be paid in the Industrial Commission proceeding, UGC elects not to proceed as a Plaintiff against Mr. McRann in the instant Colorado action. Accordingly, there is good cause for granting UGC's request for dismissal of this action without prejudice, with each side bearing its own respective costs and fees.1 Conclusion Wherefore, this action should be deemed dismissed without prejudice, either on filing of Plaintiffs' Notice of Dismissal (F.R.C.P. 41(a)(1)(i)), or by Order of the Court, pursuant to F.R.C.P. 41(a)(2)). DATED: June 12, 2006. ___s/ N. Reid Neureiter_____________________ Ann B. Frick N. Reid Neureiter JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC DC Box No. 1 1050 17th Street, Suite 1500 Denver, CO 80265 (303) 685-4800 (303) 685-4869 (fax) ATTORNEYS FOR PLAINTIFFS

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To be absolutely clear and so as to avoid all doubt, Plaintiffs' voluntary dismissal of this action without prejudice is not intended to be, nor should it be considered to be, an indication that Plaintiffs are waiving or forfeiting any rights they may have to seek, receive, or collect any attorneys fees from Mr. McRann in the Australia proceeding which have been or may be ordered pursuant to Australian law. In addition, by this voluntary dismissal without prejudice, Plaintiffs are not waiving or relinquishing their right to execute on the $98,000 judgment that was previously entered in their favor and against Mr. McRann.
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CERTIFICATE OF SERVICE I hereby certify that on June 12, 2006, a true and correct copy of the foregoing PLAINTIFFS' NOTICE OF DISMISSAL PURSUANT TO RULE 41(a)(1) OR ALTERNATIVE MOTION FOR DISMISSAL PURSUANT TO 41(a)(2 was forwarded to the following: Via Fax Richard G. (Chip) Sander SANDER SCHEID INGEBRETSEN MILLER & PARISH P.C. 700 Seventeenth Street, Suite 2200 Denver, CO 80202 303.285.5301 (fax) __s/ N. Reid Neureiter_______________

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