9013-1(k):  Voluntary DISMISSAL or Stipulation to Dismiss

Often, a party files a motion that seeks relief against other parties and that relief must be sought in a contested matter instead of in an adversary complaint.  Sometimes, a party decides soon thereafter that it no longer wishes to go forward with the contested matter.

When the request for relief is made in a contested matter,  FRBP 9014(c) indicates that FRBP 7041 and FRCP Rule 41 apply -- it is clear that the motion cannot be withdrawn -- it must be DISMISSED.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 party filed a response to a motion, OR
2. File a stipulation to dismiss and a notice of voluntary dismissal -- this is allowed when a party has already filed a response to a motion, OR 
3. File a motion to dismiss and obtain an order from the court -- this is the only method allowed when a party has filed a response but does not agree to stipulate to dismiss a motion.  Sometimes a party may wish to file a motion to dismiss even when parties agree to dismiss the action, and may do so because the request for dismissal may contain other forms of relief in addition to dismissing the motion.

The court offers a form "Notice of Voluntary Dismissal" that applies in a contested matter and then check the box that indicates whether a response has been filed or whether all parties filed a stipulation to dismiss the action.  See link below 

• BE SURE TO FILE THE CORRECT FORM because LBR 7041-1 also governs dismissal of adversary proceedings and has its own form "Notice of Voluntary Dismissal."