Free Motion for Review - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 478-2

Filed 05/04/2007

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LEXSEE 2006 US DIST LEXIS 22677 DEBRA OVERTON, Plaintiff, v. THE BOARD OF COMMISSIONERS OF RIO BLANCO COUNTY, PIONEERS HOSPITAL OF RIO BLANCO COUNTY, BOARD OF TRUSTEES OF PIONEERS HOSPITAL OF RIO BLANCO COUNTY, and ROBERT OMER, Defendants. Civil Action No. 05-cv-00186-WDM-PAC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2006 U.S. Dist. LEXIS 22677 April 19, 2006, Decided April 19, 2006, Filed COUNSEL: [*1] For Debra Overton, Plaintiff: Dean H. Harris, John A. Culver, Seth J. Benezra, Benezra & Culver, LLC, Lakewood, CO. For Rio Blanco, Board of County Commissioners, Actually named as: The Board of County Commissioners of Rio Blonco County, in its official capacity, Defendant: Cathy Havener Greer, Sarah Elizabeth Smyth, Wells, Anderson & Race LLC, Denver, CO. For Pioneers Hospital of Rio Blanco County, a County Hospital, Pioneers Hospital of Rio Blanco County, Board of Trustees of in its official capacity, Defendants: Aaron J. Brooks, John Alford Brooks, Brooks & Brooks, LLC, Montrose, CO. For Robert (I) Omer, in his individual capacity, Robert Omer, in his official capacities, Defendants: David H. Yun, Jaudon & Avery, LLP, Denver, CO; John Alford Brooks, Brooks & Brooks, LLC, Montrose, CO. For Colorado Department of Health and Environment, Interested Party: Lisa Brenner Freimann, Colorado Attorney General's Office-Gen. Legal Services, Denver, CO. JUDGES: Walker D. Miller, United States District Judge. OPINION BY: Walker D. Miller OPINION: ORDER OF DISMISSAL Miller, J. This case is before me on Plaintiffs motion to dismiss, filed March 14, 2006. In her motion, Plaintiff [*2] seeks to voluntarily dismiss defendant the Board of County Commissioners of Rio Blanco County (the BOCC) with prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). In response, the BOCC consents to dismissal, so long as they are awarded their costs as the prevailing party. Given the parties agreement, and the fact that Plaintiff only moved for dismissal after the BOCC filed a motion for summary judgment, I find that dismissal with prejudice and an award of costs is appropriate. See Cantrell v. International Bhd. of Elec. Workers, Local 2021, 69 F.3d 456, 458 (10th Cir. 1995) ("In cases not involving a settlement, when a party dismisses an action with or without prejudice, the district court has discretion to award costs to the prevailing party under Rule 54(d)."); Aerotech, Inc. v. Estes, 110 F.3d 1523, 1526-27 (10th Cir. 1997). Of course, the BOCC must first comply with D.C.COLO.LCivR 54.1. Accordingly, it is ordered: 1. Plaintiffs motion to dismiss, filed March 14, 2006 (Docket No. 123), is granted. 2. All claims against defendant Board of

Case 1:01-cv-02199-MSK-MEH

Document 478-2

Filed 05/04/2007

Page 2 of 2
Page 2

2006 U.S. Dist. LEXIS 22677, *2

County Commissioners of Rio Blanco County are dismissed [*3] with prejudice. 3. Upon compliance with D.C.COLO.LCivR 54.1, defendant Board of County Commissioners of Rio Blanco County may have its costs. 4. Defendant Board of County Commissioners of Rio Blanco County's motion for summary judgment, filed February 15, 2006 (Docket No. 103), is

denied as moot. 5. This case remains pending on Plaintiff's claims against the remaining defendants. DATED at Denver, Colorado, on April 19, 2006. BY THE COURT: s/ Walker D. Miller United States District Judge