OneBeacon Insurance Company v. Parker, Kern, Nard & Wenzel, et al

Filing 40

ORDER CLOSING CASE in Light of 39 Stipulation For Dismissal Without Prejudice, signed by Chief Judge Anthony W. Ishii on 4/12/2011. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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ONEBEACON INSURANCE
COMPANY, a Pennsylvania
corporation,

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Plaintiff,
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v.
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PARKER, KERN, NARD & WENZEL,
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a business entity, form unknown;
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DAVID H. PARKER, an individual;
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and JEFFREY LEMASTERS TAHIR, an )
individual,
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Defendants.
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____________________________________)

NO. 1:09-CV-00257 AWI GSA
ORDER CLOSING CASE IN
LIGHT OF STIPULATION FOR
DISMISSAL WITHOUT
PREJUDICE

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On April 8, 2011, the parties filed a stipulation of voluntary dismissal without prejudice
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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 of an

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answer, by filing a written stipulation to dismiss signed by all of the parties who have appeared,

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although an oral stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan

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Asso., 884 F.2d 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir.

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1986). Once the stipulation between the parties who have appeared is properly filed or made in

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open court, no order of the court is necessary to effectuate dismissal. Fed. R. Civ. Pro.

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41(a)(1)(ii); Eitel, 782 F.2d at 1473 n.4. “Caselaw concerning stipulated dismissals under Rule

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

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does not require judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1989); Gardiner v.

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

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377 F.3d 133, 139 (2d Cir. 2004); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074,

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1077 (9th Cir. 1999) cf. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)

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

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

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terminates the action as to the defendants who are the subjects of the notice.” Wilson, 111 F.3d

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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 without prejudice

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

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has 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 Without Prejudice.

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IT IS SO ORDERED.

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Dated:
0m8i78

April 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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