Valdez v. County of Kings

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

MICHAEL VALDEZ, Case No. 1:17-cv-00430-LJO-SAB

Plaintiff, ORDER DISREGARDING NOTICE OF VOLUNTARY DISMISSAL v. (ECF No. 133) LEEDS, et al., FOURTEEN DAY DEADLINE Defendants.

On November 13, 2019, Plaintiff filed a notice of voluntary dismissal dismissing the action with prejudice. (ECF No. 133.) Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Here, answers have been filed so Plaintiff cannot voluntarily dismiss this action pursuant to Rule 41(a)(1)(A)(i). Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an action without a court order by filing a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii) (emphasis added). Although the stipulation states that all parties who have appeared stipulate to the dismissal with prejudice, Plaintiff's notice of voluntary dismissal is defective under Rule 41(a) because it is not a stipulation signed by all parties who have appeared. If Plaintiff wishes to dismiss this action, he is required to comply with the procedures set forth in Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)Gi) or a motion under Rule 41(a)(2). Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED. Plaintiff shall file a request for dismissal that complies with Rule 41 within fourteen (14) days from the date of entry of this order. IT IS SO ORDERED. DAM Le Dated: _November 14, 2019 _ Of UNITED STATES MAGISTRATE JUDGE