Aro Pistachios, Inc. v. Dan On Foods Corporation

• Court: District Court, E.D. California
• Decided: August 19, 2024
• Docket: 1:24-cv-00322
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ARO PISTACHIOS, INC., Case No. 1:24-cv-00322-JLT-SAB

12 Plaintiff, ORDER DISREGARDING STIPULATION OF DISMISSAL 13 v. (ECF No. 18) 14 DAN ON FOODS CORPORATION, et al., FOURTEEN DAY DEADLINE 15 Defendants.

16 17 Plaintiff Aro Pistachios, Inc. filed this action against Dan On Foods Corporation (“Dan 18 On Foods”) and PNC Bank National Association (“PNC Bank”) on March 15, 2024. (ECF No. 19 1.) On June 25, 2024, Dan On Foods filed its answer to the complaint. (ECF No. 13.) PNC 20 Bank has not filed an answer or motion for summary judgment. 21 On August 16, 2024, Plaintiff filed a stipulation for dismissal of PNC Bank with 22 prejudice. (ECF No. 18.) The stipulation is signed only by Plaintiff and PNC Bank. (Id. at 5.) 23 Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “a plaintiff has an 24 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 25 motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 26 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 27 1997)). Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure provides that a “plaintiff 1 | may dismiss an action without a court order by filing a stipulation of dismissal signed by all 2 | parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)Gi). “As the express language of this 3 | rule indicates, for a dismissal under Rule 41(a)(1)i) to be effective, all parties who have 4 appeared must sign the _ stipulation.” Aswad _v. ACA Receivables, L.L.C., No. 5 | CIVFO60835AWILJO, 2007 WL 427591, at *1 (E.D. Cal. Feb. 7, 2007) (emphasis added); see 6 | also Thacker v. AT&T Corp., No. 220CVO0255KJMCKDPS, 2021 WL 1784873, at *1 (E.D. 7 | Cal. May 5, 2021), report and recommendation adopted, No. 220CVO255KJMCKDPS, 2021 WL 8 | 4168533 (E.D. Cal. Sept. 14, 2021). 9 A party may also dismiss an action by filing a motion requesting the Court to dismiss the 10 | action. Fed. R. Civ. P. 41(a)(2).. A motion for voluntary dismissal under Rule 41(a)(2) is 11 | addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. 12 | Inc., 679 F.2d 143, 145 (9th Cir. 1982). 13 Here, the stipulation is signed only by Plaintiff and PNC Bank, which has not appeared in 14 | this action. Defendant Dan On Foods, however, has filed an answer but is not a signatory to the 15 | dismissal. Plaintiffs stipulation for dismissal is therefore defective under Rule 41(a) because it 16 | is not a signed stipulation by all parties who have appeared, and it is not a motion under Rule 17 | 41(a)(2). If Plaintiff wishes to dismiss this action against PNC Bank, it is required to comply 18 | with the procedures set forth in Rule 41 by filing a stipulation that complies with Rule 19 | 41(a)(1)(A)Gi) or a motion under Rule 41(a)(2). 20 Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED. 21 | Plaintiff shall file a request for dismissal of PNC Bank that complies with Rule 41 within 22 | fourteen (14) days from the date of entry of this order. 23 24 IT IS SO ORDERED. OF. nf ee 75 | Dated: _ August 19, 2024

UNITED STATES MAGISTRATE JUDGE

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