In the Matter of

EDDIE J. LUJAN
    Complainant

   v.

LOS ALAMOS NATIONAL LABORATORY

and

UNIVERSITY OF CALIFORNIA
    Respondents

   On August 30, 1993, the undersigned entered an Order of Dismissal, dismissing Complainant's complaint without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). On September 28, 1993, Respondents filed a bill of costs, in the amount of ,095.21 for the deposition of Complainant, pursuant to Federal Rule of Civil Procedure 54, and 28 U.S.C. §§ 1920 and 1924. Complainant did not file a response.

   Respondents contend that, in the Tenth Circuit, costs are awarded in voluntary dismissals without prejudice, citing Mobile Power Enterprises, Inc. v. Power Vac. Inc., 496 F.2d 1311, 1312 (10th Cir. 1974) and Nolen v. Henderson National Corp., Nos. 916299, 91-6314, 1993 U.S. App. LEXIS 18955 (lOth Cir., Feb. 5, 1993). Those cases, however, deal with voluntary dismissals without prejudice by order of the court, after the filing of an answer or motion for summary judgment, pursuant to Federal Rule of Civil Procedure 41(a)(2). While Rule 41(a)(2) specifically provides for the court to impose such terms and conditions, including costs, as are appropriate, Rule 41(a)(1) contains no such provision. See 9 Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 2366 (1971) ("The court has no power to impose terms and conditions if a plaintiff properly dismisses by notice under Rule 41(a)(1). . . . [T]he authority of the court to require 'such terms and conditions as the court deems proper' is limited to a motion for dismissal under Rule 41(a)(2)."). Accordingly, Respondents' bill of costs is denied.

    Respondents' bill of costs is hereby DENIED.

At Washington, D.C.
Date: 11/24/93

       JAMES GUILL
       Administrative Law Judge