Page 1 of  4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11‐cv‐02428‐JLK

JAMES KLEINERT, et al.,

            Petitioners, v.

KEN SALAZAR, et al.,

            Federal Respondents.

PETITIONERS’ MOTION TO VOLUNTARILY DISMISS PETITION WITHOUT PREJUDICE

Petitioners, James Klienert (“Kleinert”), David Glynn (“Glynn”), and Spirit Riders Foundation, Inc.

(“Spirit Riders”), for their Motion to Voluntarily Dismiss the Petition without Prejudice, state as follows.

F.R.C.P. 41 (a)(2), provides that: Except as provided in Rule 41(a)(1), an action may be dismissed

at the plaintiff's request only by court order, on terms that the court considers proper. ... Unless the

order states otherwise, a dismissal under this paragraph (2) is without prejudice.”

Litigation challenging wild horse roundups under the 1971 Wild Horse Act are rare and recent.  

Most cases do not withstand the government’s motion to dismiss on the grounds of mootness and

standing, like the one made here.   For Petitioners, this is largely uncharted territory with many potential

pitfalls and unknowns, and Petitioners wish to give their case the very best chance for success.  For this

reason, they are requesting herein that the Court dismiss the case without prejudice so that Petitioner

James Kleinert can arrange for direct ownership of the sanctuary horses saved in the 2011 Spring Creek

Basin roundup in anticipation of refiling the case as the actual owner of these horses.  Petitioners believe

that this transfer of the ownership of the horses will be crucial to survive a motion to dismiss on the

Case 1:11-cv-02428-JLK Document 63 Filed 09/14/12 USDC Colorado Page 1 of 4
Page 2 of  4

grounds of standing and mootness, yet the timing has been difficult.   The current owners of the

sanctuary horses hold title to the adopted horses subject to BLM restrictions, and cannot deliver title to

Kleinert until mid‐October. This will also give Petitioners the opportunity to file the Second Amended

Petition as their original petition in a renewed action, as well as add their constitutional claims.

Justice will be served by granting this motion, and there will be no prejudice or harm to the

Federal Respondents.

WHEREFORE, Petitioners respectfully request that the Court grant their motion to voluntarily

dismiss the case without prejudice.

DATED this 14th day of September, 2012 /s/ Diane Wolfson

DIANE WOLFSON

Law Office of Diane Wolfson

560 Mountain Village Blvd., 102A

Mountain Village, CO 81435

Tel: (970) 728‐4471

Fax: (970) 369‐1429

Wolfson@TellurideLaw.com

Case 1:11-cv-02428-JLK Document 63 Filed 09/14/12 USDC Colorado Page 2 of 4
Page 3 of  4

CERTIFICATE OF COMPLIANCE WITH DUTY TO CONFER

The undersigned counsel for Petitioners sent the following email to Brett Grosko, Esq.,

attorney for the Federal Defendants: “Plaintiffs have decided that they would like to file a stipulation of

voluntary dismissal without prejudice. Their goal is to re‐file using the second amended complaint, drop

Spirit Riders as a plaintiff, and have the remaining Plaintiffs have record ownership of the sanctuary

horses saved from the September 2011 roundup. The current owners of those horses must wait until

mid‐October to transfer ownership to Plaintiffs, which is when they will own all the horses free and clear

of the BLM.”

Mr. Grosko responded: “Thank you for contacting me. Federal Respondents do not

agree to a stipulation of dismissal without prejudice. For the reasons stated in Federal Respondents’

motion to dismiss, this case should be dismissed with prejudice. If this case is not dismissed with

prejudice, the Petitioners should respond to the pending motion to dismiss today, as ordered by the

Court. Dkt. No. 62.”

DATED this 14th day of September, 2012 /s/ Diane Wolfson

Diane Wolfson

Case 1:11-cv-02428-JLK Document 63 Filed 09/14/12 USDC Colorado Page 3 of 4
Page 4 of  4

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of September, 2012, I served a true and correct copy of the

foregoing on the following attorney at his last known address electronically via CM/ECF at: Brett Grosko,

Esq., attorney for the Federal Respondents [Brett.Grosko@usdoj.gov].

/s/ Diane Wolfson

Diane Wolfson

Case 1:11-cv-02428-JLK Document 63 Filed 09/14/12 USDC Colorado Page 4 of 4