Herring v. Clark et al

Filing 122

ORDER CLOSING CASE In Light Of 121 Stipulation for Voluntary Dismissal With Prejudice, signed by District Judge Lawrence J. O'Neill on 7/11/2011. CASE CLOSED. cc: Warden Ken Clark, CSATF via USPS. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARVEY HERRING, III,

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Plaintiff,
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v.
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CLARK, et al.,
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Defendants.
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____________________________________)

1:05-cv-00079 LJO SMS PC
ORDER CLOSING CASE IN
LIGHT OF STIPULATION FOR
VOLUNTARY DISMISSAL
WITH PREJUDICE
(Doc. 121)
CLERK TO SERVE A COPY ON
WARDEN KEN CLARK

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On June 29, 2011, the parties filed a stipulation of voluntary dismissal with prejudice of
this matter pursuant to Federal Rule of Civil Procedure 41(a)(1)(A).

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Rule 41(a)(1)(A), in relevant part, reads:

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the plaintiff may dismiss an action without a court order by filing: (i) a notice of
dismissal before the opposing party serves either an answer or a motion for
summary judgment; (ii) a stipulated dismissal signed by all parties who have
appeared.

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Rule 41(a)(1)(A)(ii) thus allows the parties to dismiss an action voluntarily, after service
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of an answer, by filing a written stipulation to dismiss signed by all of the parties who have
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appeared, although an oral stipulation in open court will also suffice. Carter v. Beverly Hills
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Sav. & Loan Asso., 884 F.2d 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 147226
73 (9th Cir. 1986). Once the stipulation between the parties who have appeared is properly filed
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or made in open court, no order of the court is necessary to effectuate dismissal. Fed. R. Civ.
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Pro. 41(a)(1)(ii); Eitel, 782 F.2d at 1473 n.4. “Caselaw concerning stipulated dismissals under

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Rule 41(a) (1) (ii) is clear that the entry of such a stipulation of dismissal is effective

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automatically and does not require judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir.

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1989); Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984); see also Gambale v.

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Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir. 2004); Commercial Space Mgmt. Co. v. Boeing

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Co., 193 F.3d 1074, 1077 (9th Cir. 1999) cf. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th

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Cir. 1997) (addressing Rule 41(a)(1) dismissals). “The plaintiff may dismiss some or all of the

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defendants, or some or all of his claims, through a Rule 41(a)(1) notice,” and the dismissal

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“automatically terminates the action as to the defendants who are the subjects of the notice.”

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Wilson, 111 F.3d at 692; Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995).

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Because the parties have filed a stipulation for dismissal of this case with prejudice under

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Rule 41(a)(1)(A)(ii) that is signed by all parties who have made an appearance, this case has

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terminated. See Fed. R. Civ. Pro. 41(a)(1)(A)(ii); In re Wolf, 842 F.2d at 466; Gardiner, 747

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F.2d at 1189; see also Gambale, 377 F.3d at 139; Commercial Space Mgmt, 193 F.3d at 1077; cf.

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Wilson, 111 F.3d at 692.

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Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close this case in light

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of the filed and properly signed Rule 41(a)(1)(A)(ii) Stipulation Of Dismissal With Prejudice.

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The Clerk shall SERVE a copy of this order upon Ken Clark, Warden of SATF, P.O. Box 7100,

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Corcoran, CA 93212 as no response is now required to the Magistrate Judge’s order which issued

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on June 14, 2011 (Doc. 120).

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IT IS SO ORDERED.

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Dated:
b9ed48

July 11, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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