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Rockies Express Pipeline LLC v. 77.620 acres more or less

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION


February 20, 2009

ROCKIES EXPRESS PIPELINE LLC, PLAINTIFF,
v.
77.620 ACRES MORE OR LESS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

Plaintiff Rockies Express seeks to voluntarily dismiss two defendants who have not answered their Complaint. Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), such dismissal would be permissible. However, this is a condemnation case and, accordingly, Federal Rule of Civil Procedure 71.1 applies. Fed. R. Civ. P. 71.1(a).

Under Rule 71.1(i)(1)(A), dismissal is permissible without a court order so long as no compensation hearing has begun and "the plaintiff has not acquired title or a lesser interest or taken possession. . ." of the property. In light of this Court's prior order granting immediate possession, dismissal under this provision may be inappropriate because Rockies Express may have "taken possession" of the defendants' property. Thus, Rockies Express must either provide evidence that they have not taken possession of defendants' property or seek dismissal under another provision. E.g., Fed. R. Civ. P. 71.1(i)(1)(B) (stipulation); Fed. R. Civ. P. 71.1(i)(2) (unnecessarily or improperly joined defendants).

Ergo, at this juncture the motions [d/e 424, 425] must be DENIED.

IT IS SO ORDERED.

Judge Richard Mills United States District Judge

20090220

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