Alternatively, to Transfer Venue and Attorneys Fees (Docket No.’s 12, 12-1, 12-2, 12-3, 12-4,12-5, 12-6, 12-7, 12-8, 12-9, 12-10, 12-11, and 12-12) (the “Motion”) filed by Defendant BrianHill (“Defendant”) in no way precludes Righthaven from filing the Notice of Dismissal or thisAmended Notice of Dismissal.
See, e.g., Janssen v. Harris,
321 F.3d 998, 1000 (10th Cir. 2003);
accord Zimmerman v. Legal Assistant at Territorial Prison,
2010 WL 662716, at * 1 (D. Colo.Feb. 22, 2010)(recognizing that Federal Rule of Civil Procedure 41(a)(1) permits the plaintiff tofile a notice of voluntary dismissal before the opposing party files an answer or motion for summary judgment). Moreover, Righthaven’s Notice of Dismissal, as clarified or modified bythis Amended Notice of Dismissal, was effective upon filing and no subsequent order is requiredfrom the Court.
See Hyde Constr. Co. v. Koehring Co.,
388 F.2d 501, 507 (10th Cir. 1968). Thenotice, as clarified or amended by this submission, has closed the file for this case.
Righthaven understands the Court elected to strike the remaining contents of the Noticeof Dismissal (Doc. # 17) based upon Rule 12(f) by concluding the remaining contents of saidfiling constituted “immaterial and impertinent” text following the Righthaven’s statement that“This notice closes the file for this case.” Righthaven respectfully disagrees with the Courtstriking the contents of the Notice of Dismissal pursuant to Rule 12(f). Rule 12(f), as interpretedin this judicial district, only pertains to “pleading(s)” that are defined under Federal Rule of CivilProcedure 7(a)(“Rule 7(a)”) to include “(1) a complaint; (2) an answer to a complaint; (3) ananswer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third- party complaint; (6) an answer to a third-party complaint; and (7) a reply to an answer, if ordered by the court.”
AIG Annuity Ins. Co. v. Law Offices of Theodore Coats, P.C.,
2008 WL 4079982,at *5 (D. Colo. Sept. 2, 2008). The Court is not empowered to strike material contained infilings that are not “pleadings” within the meaning of Rule 12(f) in view of those materials setforth under Rule 7(a).
See id; see also Williams v. Alpine Banks of Colo.,
2006 WL 905333, at *1(D. Colo. Apr. 7, 2006)(citing
Jones v. Topeka,
764 F.Supp. 1423, 1425 (D. Kan. 1991));
accord Sidney-Vinstein v. A.H. Robins Co.,
697 F.2d 880, 885 (9th Cir. 1983);
Sauls v. Bristol-Meyers
Case 1:11-cv-00211-JLK Document 21 Filed 04/14/11 USDC Colorado Page 2 of 6