McDow v. Shelter Financial Services LLC

Opinion

KENNEDY MCDOW, CASE NO. 1:21-CV-0163 AWI EPG

Plaintiff ORDER DISMISSING MATTER v.

SHELTER FINANCIAL SERVICES, (Doc. Nos. 26, 30, 31) LLC, et al., Defendants On September 17, 2021, Plaintiff filed a request to dismiss all parties. See Doc. No. 26. On September 21, 2021, the Magistrate Judge treated the request as brought under Rule 41(a)(1) and ordered the Clerk to give effect to the dismissal to all defendants, save for the Merced Police Department (“MPD”). See Doc. No. 28. MPD did not sign the request and had previously filed an answer, thereby preventing the Plaintiff for unilaterally and automatically dismissing MPD through a Rule 41(a)(1) dismissal. See id. On October 8, 2021, the Court acknowledged the above procedural history and construed Plaintiff’s request to be a Rule 41(a)(2) request for dismissal as to MPD without prejudice. See Doc. No. 30. The Court ordered MPD to file a response to the requested dismissal, but did inform MPD that a failure to file a response would be construed as a non-opposition that would result in the dismissal of MPD without prejudice. See id. Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer, but has not signed a stipulation to dismiss, a plaintiff’s voluntary dismissal of an “action” must be affected through Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of Jose, 111 F.3d 688, 692 (9th Cir. 1999); Mayes v. Fujimoto, 181 F.R.D. 453, 455 (D. Haw. 11998). Rule 41(a)(2) provides in pertinent part: “Except as provided in Rule 41(a)(1), an action be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. Pro. 41(a)(2). “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Here, Plaintiff clearly no longer wishes to pursue litigation at this time. Moreover, MPD has now expressly stated that it consents to dismissal. With MPD’s consent, there is no apparent prejudice to MPD and no reason to keep this case open. Therefore, the Court will dismiss MPD without prejudice pursuant to Plaintiff’s unopposed Rule 41(a)(2) requested dismissal and close case. See Fed. □□ Civ. P. 41(a)(2); Smith, 263 F.3d at 975. Accordingly, IT IS HEREBY ORDERED that: Plaintiff’s Rule 41(a)(2) motion to dismiss Defendant Merced Police Department without prejudice is GRANTED; The Clerk shall CLOSE this case; and All pending dates and deadlines are VACATED. Dated: _ October 12, 2021 SE SISTRICI “UDGE

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