(PC) Gray v. Khoo

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DANA GRAY, Case No. 1: 20-cv-01047-DAD-SAB (PC)

Plaintiff, ORDER REQUIRING DEFENDANTS TO RESPOND TO PLAINTIFF’S FILING OF v. NOTICE OF DISMISSAL OF DEFENDANT B. SHOWALTER A. KHOO, et al., (ECF No. 60) Defendants. FIVE DAY DEADLINE On January 21, 2022, Plaintiff filed a notice that Plaintiff is releasing Defendant B. Showalter as a defendant in this action. (ECF No. 60.) Rule 41(a) of the Federal Rules of Civil Procedure allows a party to dismiss some or all of the defendants in an action through a Rule 41(a) notice. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997); see also Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (“The plaintiff may dismiss either some or all of the defendants—or some or all of his claims—through a Rule 41(a)(1) notice.”)); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (The Ninth Circuit has “only extended the rule to allow the dismissal of all claims against one defendant, so that a defendant may be dismissed from the entire action.”). However, a notice of dismissal filed only by a plaintiff is effective only as to defendants who have not yet appeared in the action. See Fed. R. Civ. P. 41(a)(1)(A)(i)-(ii). If a defendant has appeared, the action is dismissed through the filing of a stipulation of dismissal signed by all parties who have appeared. Fed. R. Civ. P. 41(a)(1)(A)Gi). Otherwise, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). The Court shall order Defendants to signify whether they join and consent in the Plaintiffs filing, and if so, the Court will then give effect to the filing as a stipulation pursuant to Fed. R. Civ. P. 41(a)(1)(A) Gi). Accordingly, within five days of entry of this order, Defendants shall notify the Court whether they join and consent in Plaintiff's notice of voluntary dismissal filed on January 21, 2022. IT IS SO ORDERED. DAM Le Dated: _January 24, 2022 __ UNITED STATES MAGISTRATE JUDGE