7041:  Adversary Proceeding: VOLUNTARY DISMISSAL or Stipulation to Dismiss

In many situations described under FRBP 7001, a plaintiff must file an adversary complaint in order to seek that type of relief against other parties.   Sometimes, a plaintiff decides soon thereafter that it no longer wishes to go forward with the adversary complaint.

When the request for relief is made in an adversary complaint, FRBP 7041 and FRCP Rule 41 apply and it is clear that the adversary complaint cannot be withdrawn -- it must be DISMISSED. 

There are 3 options to follow under FRCP Rule 41:

1.  FILE A NOTICE OF VOLUNTARY DISMISSAL -- this is allowed when no defendant filed a response to an adversary complaint.  See FRCP Rule 41(a)(1)
2.  FILE A STIPULATION TO DISMISS and a NOTICE OF VOLUNTARY DISMISSAL -- this is allowed when a defendant has already filed a response to an adversary complaint.  See FRCP Rule 41(a)(1)
3. FILE A MOTION TO DISMISS and obtain an order from the court -- this is the only method allowed when a defendant has already filed a response but does not agree to stipulate to dismiss the adversary complaint.  In addition, sometimes a plaintiff may wish to file a motion to voluntarily dismiss the adversary complaint even when the plaintiff and defendants agree to dismiss the complaint and may do so because the request for dismissal may contain other forms of relief in addition to dismissing the adversary complaint.  See FRCP Rule 41(a)(2)

The court offers one LBR form that applies in an adversary proceeding and another form that applies in a contested matter.  BE SURE TO FILE THE CORRECT FORM, because LBR 9013-1(k) is the specific LBR that governs dismissal of a contested matter and has its own LBR form. 

Then, simply check the box that indicates whether a response has been filed or whether all parties filed a stipulation to dismiss the adversary complaint.