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Dismissal of Adversary Proceedings or parties/counts (request filed by plaintiff)

Official Procedure Last Change March 17, 2017

Dismissal of Adversary Proceedings or parties/counts therein (request filed by plaintiff alone or jointly with defendant)

 See separate procedure if the defendant alone is seeking to dismiss an adversary case.

How to file:

Location of event:

Things to be aware of when filing: Stipulation of Dismissal: You must select both plaintiff and defendant from the party select screen (even though only one party is actually filing the document). Hold down the Ctrl key to select more than one party.

 

General Information

  • Notice of Dismissal. Fed.R.Bankr.P. 7041 permits the plaintiff to withdraw a complaint, prior to a defendant’s filing of an answer or motion for summary judgment, by filing a notice of dismissal. The notice of dismissal concludes the adversary proceeding, with no further order from the Court. If a defendant has answered or moved for summary judgment, the plaintiff cannot use the notice of dismissal to terminate the adversary proceeding but instead must file either a stipulation of dismissal or a motion to dismiss. The notice of dismissal should be served on the defendant.  If the proceeding is a 727 Objection to/Revocation of Discharge, then the notice of dismissal should also be sent to the US Trustee, any trustee, any counsel of record that have appeared (even if they only appeared in the legal case and not the adversary case, or vice versa), and any party intervening pursuant to FRBP 7024.  
  • Stipulation of Dismissal. Fed.R.Bankr.P. 7041 also permits the parties to file a stipulation of dismissal. This stipulation concludes the adversary proceeding, with no further Court order. A ”joint motion to dismiss” should be filed as a stipulation of dismissal. If the stipulation of dismissal includes conditions precedent or subsequent, it should be filed as an agreed consent to judgment. If the proceeding is a 727 Objection to/Revocation of Discharge, the Stipulation must be sent to the US Trustee, any trustee, any counsel of record that have appeared (even if they only appeared in the legal case and not the adversary case, or vice versa), and any party intervening pursuant to FRBP 7024.
  • Motion to Dismiss. The plaintiff’s motion to dismiss after defendant’s answer or summary judgment request requires service on the other parties in the adversary proceeding, or, if the proceeding is a 727 Objection to/Revocation of Discharge, on the US Trustee, any trustee, any counsel of record that have appeared (even if they only appeared in the legal case and not the adversary case, or vice versa), and any party intervening pursuant to FRBP 7024. A Court order granting the motion is also required. If the Motion seeks to dismiss a party/parties, and not the entire adversary proceeding, the Motion to Dismiss Party event must be used.
  • An Appearance, filed by any attorney for the moving party, must be filed as a separate event. If an Appearance is not filed, the court will issue a Notice of Deficient filing and any further notice to be issued by the court or Order Granting will be held by the court until the deficiency is cured. If the deficiency is not cured, the original entry may be stricken from the record.

See more information on resolutions of adversary proceedings

Filing requirements

  • The document must be signed by all parties to the agreement.
  • The document must not contain order or judgment language, such as "it is ordered" or "judgment is hereby entered," nor a place for the judge's signature.
  • Filing party is responsible for uploading a proposed order.
  • A certificate of service must be included with motions to dismiss adversary proceeding, with all notices of dismissal, and with stipulations of dismissal if the adversary is a 727 action. 

Step-by-Step Instructions to file Notice or Stipulation of Dismissal

1. Log into CM/ECF.

2. Select Adversary > Resolution (Dismissal/Judgment) & Post-Judgment Matters.

3. Enter case number (in the format xx-xxxxx) and click Next.

4. Select Dismissal Notice re: Adversary Proceeding, Party, or Count or Dismissal Stipulation re: Adversary Proceeding, Party, or Count from the event list and click Next.

5. Do not check the box to indicate that you are filing jointly with another attorney. Just click Next.

6. Click to highlight the Party. The plaintiff is always a filing party. The defendant should also be selected if you are filing a Stipulation of Dismissal (hold down the Ctrl key to select more than one party). Click Next.

Note: The "Attorney/Party Association” screen may appear. If your party selection was correct, check the box to create any associations that apply. DO NOT check any boxes that do not apply. If none apply, do not check any boxes - in that case, when you click Next, a warning message will appear telling you that you have not created an association. You may safely ignore the warning and click OK to continue.

7. Browse to attach the document to be filed (pdf file). Click Next.

8. Select appropriate radio button and click Next.

9. If you indicated that only a certain party was to be dismissed and not the entire adversary proceeding, select the party who is to be dismissed from the drop-down list and click Next.

10. Non-727 actions cases: Skip to next step. 727 action cases: Click Next.

11. Select prefix text, if applicable, and click Next.

12. Verify final docket text. If correct, click Next to submit.

Note: The Notice of Electronic Filing displays giving you the document number. Copies of this notice are immediately e-mailed to all participants who receive electronic notification in the case.

Step-by-Step Instructions to file Motion to Dismiss

1. Log into CM/ECF.

2. Select Adversary > Motions & Briefs.

3. Enter case number (in the format xx-xxxxx) and click Next.

4. Select Dismiss Adversary Proceeding or Count from the event list and click Next.

5. Select appropriate radio button to indicate whether or not the Motion you are filing is amended.

6. Check box if jointly filing with another attorney, click Next.

7. If you indicated that you are filing jointly with other attorney(s), select additional attorneys and click Next.

Note: You cannot add attorneys. Only attorneys who have previously entered an appearance will be available for selection.

8. Click to highlight the Party and click Next.

Note: The "Attorney/Party Association” screen may appear. If your party selection was correct, check the box to create any associations that apply.

9. Browse to attach the document to be filed (pdf file). Click Next.

10. Select appropriate radio buttons and click Next.

11. If you indicated that the motion is being filed pursuant to Fed.R.Civ.P. 12(b)(6), you are asked whether you are attaching the brief along with the motion. Select the correct radio button and click Next.

12. If a brief is required and you indicated that the brief is not being filed at this time, the deadline for filing it is calculated and displayed. Click Next.

13. Enter date of service of motion (and brief, if applicable) - this may not be today's date. Click Next. Response date is calculated and displayed. Click Next. (This step is skipped if a brief is required but has not yet been filed.)

14. If you indicated in step 5 that you are filing an amended motion, all pending motions on the docket are displayed. Select the motion that is being amended and click Next.

15. Select prefix text, if applicable, and click Next.

Note: The prefix text option is not available if you indicated in Step 5 that the Motion you are filing is amended. 

16. Verify final docket text. If correct, click Next to submit.

Note: The Notice of Electronic Filing displays giving you the document number. Copies of this notice are immediately e-mailed to all participants who receive electronic notification in the case.