Martinez v. Greyhound Bus Lines

Filing 12

ORDER DISMISSING CASE without prejudice and vacating intitial scheduling conference. Signed by Judge Anthony W. Ishii on 4/28/06.CASE CLOSED (Gil-Garcia, A)

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Martinez v. Greyhound Bus Lines Doc. 12 Case 1:06-cv-00424-AWI-TAG 1 Document 12 Filed 04/28/2006 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 Defendants. 9 10 11 The parties in this matter have stipulated to dismiss the above-captioned action without 12 prejudice (Doc. 10). The parties seek dismissal of this action pursuant to Rule 41(a) of the Federal 13 Rules of Civil Procedure. Rule 41(a)(1), in relevant part, reads: 14 15 16 17 18 Although a stipulation for dismissal has been filed, Rule 41(a)(1)(i) allows a plaintiff to 19 dismiss an action voluntarily, by notice, prior to service of an answer or a motion for summary 20 judgment. This rule extends as fully to cases removed from a state court, as here, as it does to cases 21 commenced in a federal court. E.g., Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). 22 Rule 41(a)(1)(i) appears applicable in this matter insofar as there is no indication in the record of an 23 answer or motion for summary judgment having been filed, whether in state or federal court. 24 After service of an answer, and pursuant to Rule 41(a)(1)(ii), dismissal may be effected via 25 the filing a written stipulation to dismiss signed by all of the parties who have appeared, although an 26 oral stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan Assoc., 884 F.2d 27 28 1 an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. v. GREYHOUND LINES, INC., and DOES 1-25, inclusive, ANITA MARTINEZ, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:06-cv-0424 AWI TAG ORDER DISMISSING CASE WITHOUT PREJUDICE AND VACATING INITIAL SCHEDULING CONFERENCE Case 1:06-cv-00424-AWI-TAG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: 0m8i78 April 28, 2006 Document 12 Filed 04/28/2006 Page 2 of 2 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 1986). Once the stipulation between the parties who have appeared is properly filed or made in open court, no order of the court is necessary to effectuate dismissal. Fed. R. Civ. P. 41(a)(1)(ii). Eitel, 782 F.2d at 1473 n.4. Regardless of whether Rule 41(a)(1)(i) or Rule 41(a)(1)(ii) applies, given that Plaintiff has filed a stipulation for dismissal without prejudice as to all parties sufficient under Rule 41(a)(1)(ii), this case has terminated. See Fed. R. Civ. P. 41(a)(1)(ii); In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1988); Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984); see also Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir. 2004); Commercial Space Mgmt. v. Boeing., 193 F.3d 1074, 1077 (9th Cir. 1999); cf. Wilson, 111 F.3d 688, 692 (9th Cir. 1997). Therefore, IT IS HEREBY ORDERED that: 1. 2. This matter is DISMISSED without prejudice. An Initial Scheduling Conference set for July 12, 2006 at 9:00 a.m. (Doc. 7) is VACATED. /s/ Anthony W. Ishii UNITED STATES DISTRICT JUDGE 2

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