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KNOPF v. AVCO CORPORATION

United States District Court, M.D. Pennsylvania


May 19, 2005.

NORMA KNOPF, Individually and as Administratrix of the Estate of PAUL KNOPF, deceased, Plaintiff,
v.
AVCO CORPORATION, et al., Defendants.

The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge

ORDER

BACKGROUND:

The court has been presented with a stipulation whereby plaintiff, Norma Knopf, individually and as administratrix of the estate of Paul Knopf, deceased, dismisses without prejudice the following named defendants from this litigation: the New Piper Aircraft, Inc., Piper Aircraft Corporation, now known as the New Piper Aircraft, Inc., and Piper Aircraft Corporation irrevocable trust (the "Piper Aircraft Defendants"). The stipulation states various conditions and was presented to the court with the implied request that it be adopted as an Order of Court.

  The stipulation itself does not state whether it is filed under Federal Rule of Civil Procedure 41(a)(1) or 41(a)(2). If intended to be under Rule 41(a)(1)(ii) it would need to be signed by all parties who appeared in the action, and if that requirement was satisfied, the stipulation would not then require the approval of the court.

  However, none of the other parties who have appeared in the action has either signed the stipulation or concurred in the request for approval by the court.

  The court must therefore assume that it is submitted under Rule 41(a)(2), but it is defective as a motion for an order of court as it does not comply with LR 7.1 of the Local Rules of the United States District Court for the Middle District of Pennsylvania: the motion does not contain a certification by counsel for the movant that he or she has sought concurrence in the motion by each party, and that it has been either given or denied.

  The court is further confused by the statement in the fourth paragraph of the stipulation that "the within dismissal without prejudice will not count as a dismissal under any circumstances as to any of the parties herein as a dismissal for the purposes of Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure or any similar state court rule and/or similar statute". It would appear that the intended reference was to Rule 41(a)(1)(ii) rather than to Rule 41(a)(1)(i).

  While the stipulation may be meritorious, the court will not enter an order approving it absent concurrence by all parties who appeared in the action; or, absent such concurrence, without the filing of a motion fully briefed. See LR 7.5, 7.6 and 7.7.

  NOW, THEREFORE, IT IS ORDERED THAT:

1. The clerk is directed to file and docket the stipulation.
  2. The implied request that the stipulation be adopted as an order of court is denied.

20050519

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