(PC) Ellis v. Kern County Sheriff Department

Opinion

1 2 3 4 7 8 CHARLES ELLIS, SR., No. 1:22cv-01209-JLT-SAB (PC) 9 Plaintiff, ORDER DIRECTING DEFENDANTS TO FILE A RESPONSE TO PLAINTIFF’S 10 v. NOTICE OF VOLUNTARY DISMISSAL BY NOVEMBER 22, 2024 DEPARTMENT, et al., (ECF No. 53) 12 Defendants. 13

14 15 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 16 to 42 U.S.C. § 1983. 17 Currently before the Court is Plaintiff’s notice of voluntary dismissal, filed November 14, 18 2024. The notice states that Plaintiff moves to voluntarily withdraw this action, with prejudice. 19 (Id.) 20 “[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his 21 action prior to service by the defendant of an answer or a motion for summary judgment.” 22 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 23 (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no 24 court order is required, the parties are left as though no action had been brought, the defendant 25 can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. 26 Federal Rule of Civil Procedure 41(a)(1)(A)(ii) further provides that a “plaintiff may 27 dismiss an action without a court order by filing a stipulation of dismissal signed by all parties 28 who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). 1 A party may also dismiss an action by filing a motion requesting the Court to dismiss the 2 | action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is 3 | addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. 4 | Inc., 679 F.2d 143, 145 (9th Cir. 1982). 5 As Defendants have already filed an answer and Plaintiff's notice of voluntary dismissal 6 | includes only his signature, Plaintiff may not dismiss this action pursuant to Rule 41(a)(1). 7 | Instead, the Court finds it appropriate to construe the notice as a motion for voluntary dismissal 8 | under Rule 41(a)(2). Therefore, Defendants are directed to file an opposition or statement of non- 9 | opposition to the motion. Alternatively, Defendants may obtain a stipulation of dismissal that is 10 | signed by all parties appearing in this action. Any stipulation should specify whether this action 11 | will be dismissed with or without prejudice. 12 Accordingly, it is HEREBY ORDERED that: 13 1. Plaintiff's notice of voluntary dismissal (ECF No. 66) is construed as motion for 14 voluntary dismissal; and 15 2. On or before November 22, 2024, Defendants shall file either: 16 a. An opposition or statement of non-opposition to Plaintiff's motion for voluntary 17 dismissal; or 18 b. A stipulation to dismiss this action pursuant to Federal Rule of Civil Procedure 19 41(a)(1)(A)@i), signed by all parties appearing in this action and specifying 20 whether this action will be dismissed with or without prejudice. 21 IT IS SO ORDERED. DAM Le 23 || Dated: _ November 15, 2024 STANLEY A. BOONE 24 United States Magistrate Judge 25 26 27 28