Soto v. County of Sacramento

Opinion

FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SILVIA SOTO, an individual, ) Case No.: 2:19-CV-00910-TLN-DB 11 LATANYA ANDREWS, an individual, ) 12 M.M.S., a minor, and M.M.S., a minor, ) 13 by and through their guardian ad litem, ) ) O DR EFD EE NR D O AF N V TO , SL TU AN TT EA OR FY CD AIS LM IFI OS RSA NL IA O F SILVIA SOTO, in each case both 14 individually and as successors-in-interest ) WITHOUT PREJUDICE UNDER FEDERAL ) RULE OF CIVIL PROCEDURE 41(a)(1)(A)(i) 15 to the ESTATE OF MARSHALL ) MILES, Deceased ) 16 ) 17 ) Plaintiffs, ) 18 ) vs. ) 19 ) 20 COUNTY OF SACRAMENTO, STATE) OF CALIFORNIA, SCOTT JONES and) 21 DOES 1 THROUGH 100, Inclusive, ) ) 22 ) 23 Defendants ) ) 24 _________________________________ )

25 Plaintiff has filed a notice of voluntary dismissal to dismiss Defendant State of California 26 from this action, without prejudice, pursuant to Rule 41(a)(1)(A)(i) of the Federal rules of Civil 27 Procedure. 28 1 It has been established that, “…a plaintiff has an absolute right voluntarily to dismiss his 2 action prior to service by the defendant of an answer or a motion for summary judgment.” Concha 3 v. London (9th Cir. 1995) 62 F.3d 1493, 1506. The court in Concha held that the right to dismissal 4 includes a right to dismiss, “…some or all of the defendants –or some or all of his claims – through 5 a Rule 41(a)(1) notice.” Concha v. London, supra, 62 F.3d at 1506; citing Pedrina v. Chun, (9th 6 Cir.1993) 987 F.2d 608, 609. 7 In the current matter, though Defendants County of Sacramento and Scott Jones have filed 8 answers to Plaintiff’s complaint, Defendant State of California has filed a motion to dismiss 9 Plaintiff’s claims in lieu of an answer at this time. Here, as in Concha, dismissal of a single 10 defendant may be proper even if the defendant to be voluntary dismissed has its own pending 11 motion to dismiss. Concha v. London, supra, 62 F.3d at 1506. 12 Further, unless otherwise stated, the voluntary dismissal is ordinarily without prejudice to 13 the plaintiff's right to commence another action for the same cause against the same defendants. 14 Such a dismissal leaves the parties as though no action had been brought. Wilson v. City of San 15 Jose, (9th Cir. 1997)111 F.3d 688, 692 citing McKenzie v. Davenport-Harris Funeral Home, (9th 16 Cir.1987) 834 F.2d 930, 934-35 17 For good cause shown, IT IS HEREBY ORDERED THAT Plaintiff’s Notice of 18 Voluntary Dismissal of Defendant State of California is GRANTED. The State of California is 19 dismissed from this action pursuant to Rule 41(a)(1)(A)(i), without prejudice, and the dismissal is 20 effective on filing. All other answering Defendants to remain, and no further court order is 21 required. IT IS SO ORDERED 22

23 DATED: August 23, 2019 24

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