Halliday et al v. Spjute et al

Filing 614

ORDER DISMISSING CASE with Prejudice signed by District Judge Anthony W. Ishii on 05/17/2022. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHELLY IOANE,

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Case No. 1:07-cv-00620 AWI EPG
Plaintiff,

ORDER DISMISSING CASE WITH
PREJUDICE

v.
JEAN NOLL,

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Defendant.

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Plaintiff Shelly Ioane is formally represented by attorney Peter Borenstein. In response to

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a court minute order, Mr. Borenstein made a filing on April 15, 2022, which stated that “I no

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longer represent Plaintiff Shelly Ioane. The representation ended in June 2021. Since that time, it

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has been my understanding that Mrs. Ioane was seeking to retain new counsel to proceed with this

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case.” Doc. 609. On April 18, 2022, Magistrate Judge Grosjean issued an order directing Mr.

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Borenstein to file a motion to withdraw within fourteen (14) days. Doc. 610. Twenty eight (28)

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days have passed and Mr. Borenstein has not neither filed the motion nor contacted the court in
any way.

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Instead, on April 21, 2022, Plaintiff Ioane herself filed a “Notice of Voluntary Dismissal”

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in which she stated that “pursuant to Federal Rule of Civil Procedure 41(a), Plaintiff Shelly Ioane

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voluntarily dismisses the above-captioned action with prejudice.” Doc. 611. On April 21, 2022,

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Defendant Jean Noll filed a notice that she wished to “stipulate to a request of Plaintiff to dismiss

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this action, with prejudice” but was not sure how the unresolves status of Mr. Borenstein affected

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the situation. Doc. 612.
Federal Rule of Civil Procedure 41(a)(2) allows for a court to order a case’s dismissal if a
plaintiff expresses that desire: “Except as provided in Rule 41(a)(1), an action may be dismissed
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at the plaintiff’s request only by court order, on terms that the court considers proper.” Given the

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lack of cooperation from Mr. Borenstein, proceeding under this provision seems appropriate. To

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save all parties from further unnecessary expense, Plaintiff Ioane’s filing is deemed to be a valid

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request to dismiss under Fed. R. Civ. Proc. 41(a)(2). Plaintiff Ioane requests dismissal with
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prejudice and Defendant Noll agrees with that resolution of the case. Docs. 611 and 612. “[T]he

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decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of

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the District Court.” Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982),

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citations omitted. In this circumstance, when both parties plainly wish to bring the suit to a clear

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end without further procedural hurdles, Plaintiff Ioane’s request should be granted.
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff Shelly Ioane’s Rule 41(a)(2) request to dismiss the case with prejudice is
GRANTED.
2. The Clerk shall CLOSE this case.

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IT IS SO ORDERED.
Dated: May 17, 2022
SENIOR DISTRICT JUDGE

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13477218.2