                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         April 4, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    HARRY PTASYNSKI,

                Plaintiff-Appellant,

    v.                                                    No. 06-1231
                                                   (D.C. No. 06-cv-651-LTB)
    KIN DER M ORGAN G.P., IN C.,                           (D . Colo.)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.




         Plaintiff Harry Ptasynski filed this action against defendant Kinder M organ

G.P., Inc., concerning royalty payments for carbon dioxide produced from the

M cElmo Dome Unit in southeastern Colorado. Defendant did not answer but

filed a motion to transfer venue to the United States District Court for the

Southern District of Texas based on the first-to-file rule, alleging that a




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
substantively identical action between the parties was already underway. On

M ay 19, 2006, the district court granted the motion to transfer. W ithin hours of

that order, plaintiff filed a notice of voluntary dismissal without prejudice under

Fed. R. Civ. P. 41(a). See Docketing Statement at 5. On M ay 22, the district

court issued an order stating that the transferee court would have to rule on the

notice of voluntary dismissal. Plaintiff then filed a notice of appeal to this court

on M ay 23, in which he stated that he was appealing the M ay 19 and M ay 22

orders. On M ay 24, the Colorado court sent the files to the Texas court, and on

M ay 26, the case w as entered on the docket of the Southern District of Texas. O n

June 1, that court entered an order granting the dismissal without prejudice.

      This court issued an order to show cause, directing the parties to submit

supplemental briefs on whether the transfer order is an appealable order. Plaintiff

responded that our jurisdiction is based on the M ay 22 order, not the transfer

order, and suggested that his notice of dismissal was necessary to preserve review

because the district court refused to stay the transfer to permit plaintiff to file a

petition for mandamus. Defendant argued that this case is moot because plaintiff

voluntarily dismissed it, that the transfer order is not appealable, and that we

should not treat this appeal as a petition for mandamus. As we explain, we

conclude that this appeal is moot and therefore have no occasion to consider

whether to treat it as a petition for mandamus.




                                           -2-
      The entry of the transfer order did not divest the District of Colorado of

jurisdiction over this case. As we have explained, that would have occurred when

the matter w as docketed in the transferee court:

      Once the files in a case are transferred physically to the court in the
      transferee district, the transferor court loses all jurisdiction over the
      case, including the power to review the transfer. The date the papers
      in the transferred case are docketed in the transferee court, not the
      date of the transfer order, consequently forms the effective date that
      jurisdiction in the transferor court is terminated.

Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516-17

(10th Cir. 1991) (citations and footnote omitted). W hen plaintiff filed his notice

of voluntary dismissal pursuant to Rule 41(a) on M ay 19, just hours after the

court had entered the transfer order, the District of Colorado still had jurisdiction

because the case was not docketed in the transferee court, the Southern District of

Texas, until M ay 26.

      Plaintiff did not state on which subdivision of Rule 41(a) he based his

notice of voluntary dismissal. Rule 41(a) provides:

      (a) V oluntary Dismissal: Effect Thereof.

         (1) By Plaintiff; by Stipulation. Subject to the provisions of
      Rule 23(e), of Rule 66, and of any statute of the United States, an
      action may be dismissed by the plaintiff without order of court (i) by
      filing a notice of dismissal at any time before service by the adverse
      party of an answer or of a motion for summary judgment, whichever
      first occurs, or (ii) by filing a stipulation of dismissal signed by all
      parties who have appeared in the action. Unless otherwise stated in
      the notice of dismissal or stipulation, the dismissal is without
      prejudice, except that a notice of dismissal operates as an
      adjudication upon the merits when filed by a plaintiff who has once

                                          -3-
      dismissed in any court of the United States or of any state an action
      based on or including the same claim.

        (2) By Order of Court. Except as provided in paragraph (1) of this
      subdivision of this rule, an action shall not be dismissed at the
      plaintiff’s instance save upon order of the court and upon such terms
      and conditions as the court deems proper. If a counterclaim has been
      pleaded by a defendant prior to the service upon the defendant of the
      plaintiff's motion to dismiss, the action shall not be dismissed
      against the defendant’s objection unless the counterclaim can remain
      pending for independent adjudication by the court. Unless otherwise
      specified in the order, a dismissal under this paragraph is without
      prejudice.

Fed. R. Civ. P. 41(a). It is clear that (a)(1)(i) is the applicable portion of the rule

because plaintiff filed a notice of voluntary dismissal without prejudice, not a

stipulation signed by all of the parties as contemplated by (a)(1)(ii), and

defendant had not served an answer or a summary judgment motion. By its ow n

terms, Rule 41(a)(2) is not applicable because of the exception it carves out for

dismissals that conform to the requirements of Rule 41(a)(1). Furthermore, in his

supplemental brief on appellate jurisdiction, plaintiff asks us to apply Janssen v.

Harris, 321 F.3d 998 (10th Cir. 2003), to his notice of voluntary dismissal, a case

that involved Rule 41(a)(1)(i), which further indicates that plaintiff based his

motion on Rule 41(a)(1)(i).

      In Janssen, we explained that “[u]nder Rule 41(a)(1)(i), a plaintiff has an

absolute right to dismiss without prejudice and no action is required on the part

of the court.” 321 F.3d at 1000 (emphasis added). W e then noted the effects of a

Rule 41(a)(1)(i) notice of voluntary dismissal without prejudice:

                                           -4-
      The effect of the filing of a notice of dismissal pursuant to
      Rule 41(a)(1)(i) is to leave the parties as though no action had been
      brought. Once the notice of dismissal has been filed, the district
      court loses jurisdiction over the dismissed claims and may not
      address the merits of such claims or issue further orders pertaining to
      them.

Janssen, 321 F.3d at 1000 (quotation omitted). W e also agreed with the

appellee’s argument that an order issued after the notice was filed purporting to

grant the voluntary dismissal was “superfluous, a nullity, and without procedural

effect for purposes of appeal or otherwise.” Id. (quotation omitted).

      The reasoning of Janssen applies here. W hen plaintiff filed his notice of

voluntary dismissal without prejudice on M ay 19, it automatically divested the

District of Colorado of jurisdiction and left the parties as though no action had

been brought. It rendered the court’s M ay 22 order a nullity and without

procedural effect. In Janssen, we did not address what effect a notice of

voluntary dismissal without prejudice has on orders that a district court enters

before the notice is filed, but we conclude that the notice in this case rendered the

district court’s M ay 19 transfer order a nullity and the case moot. See Marex

Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 547 (4th Cir. 1993)

(holding that “the action was terminated and the district court’s interlocutory

orders were vacated” after plaintiff filed its Rule 41(a)(1)(i) notice); Oneida

Indian Nation v. Oneida County, 622 F.2d 624, 629 n.7 (2d Cir. 1980)

(“Voluntary dismissal of a suit . . . vitiat[es] and annul[s] all prior proceedings



                                          -5-
and orders in the case, terminating jurisdiction over it for the reason that the case

has become moot.”) (quotation, brackets, and ellipses omitted); cf. In re Piper

Aircraft Distribution Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir. 1977)

(holding that orders preceding a voluntary dismissal without prejudice under

Rule 41(a)(1)(i) could not be given preclusive effect because the dismissal

“carries down with it previous proceedings and orders in the action”) (quotation

omitted). Because the notice of voluntary dismissal annulled the orders of the

district court and mooted the case, this appeal is moot. 1




1
       Plaintiff argues that he filed his notice of voluntary dismissal because the
district court did not grant a stay of the transfer, which would have given him
time to file a mandamus petition. W e have endorsed the delay of transfer to
permit a party to seek either mandamus relief or certification of an interlocutory
transfer order under 28 U.S.C. § 1292(b). See Chrysler Credit Corp., 928 F.2d
at 1517, 1520 n.9. To the extent plaintiff is suggesting that the district court
erred in denying a motion for a stay of the transfer, the argument is of no avail
because he did not properly seek a stay in the District of Colorado. The relevant
local rule of that court provides: “A motion shall not be included in a response or
reply to the original motion. A motion shall be made in a separate paper.”
D.C.COLO.LCivR 7.1C. Plaintiff’s request for a stay was presented in his
response to the motion to transfer, not in a separate motion, and the district
court’s orders are silent as to the procedurally improper request. Rather than
filing a proper motion to stay the transfer, plaintiff filed his notice of voluntary
dismissal without prejudice, which was the deathblow to his case and to any
chance to seek review in this court.

                                          -6-
      W e DISM ISS this appeal as M OOT and therefore have no occasion to

consider whether to treat it as a petition for mandamus.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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