Singh,et al v. Shannon, et al

Filing 36

ORDER on Plaintiffs' Notice of Voluntary Dismissal signed by Chief Judge Anthony W. Ishii on 11/19/2009. Betty Hayward; Candace McCarthy Leone; Donna J Patterson; Richard Patterson; William Barry Shannon; Sopac McCarthy Tompkins living trust; Tule River Indian Tribe; Tule River Tribal Council; Candace McCarthy Leone Living Trust and Steve Graves terminated from action. (Flores, E)

1 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 13 14 On November 18, 2009, Plaintiffs filed a notice of voluntary dismissal without prejudice 15 of this matter as to the following Defendants: Steve Graves, Candace McCarthy Leone as 16 Trustee of the Candace McCarthy Leone Living Trust, Richard Patterson, Donna J. Patterson, 17 Tule River Indian Tribe, Tule River Indian Tribe Council, Betty Hayward, William Barry 18 Shannon, Candace McCarthy Leone, and John Does as trustee for Sopac McCarthy Tompkins 19 Living Trust. Plaintiffs did not include Defendants Grace C. Nichols or Robert Nichols in their 20 voluntary dismissal. Although Plaintiffs do not indicate under which Federal Rule of Civil 21 Procedure they are proceeding under, it appears that Plaintiffs seek to dismiss certain Defendants 22 pursuant to Federal Rule of Civil Procedure 41(a)(1). 23 In Wilson v. City of San Jose, the Ninth Circuit explained: 24 25 26 27 28 Under Rule 41(a)(1), 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. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his SATISH K. SINGH, an individual; and MEENA R. SINGH, an individual, NO. 1:09-CV-00481 AWI-GSA ORDER ON PLAINTIFFS' NOTICE OF VOLUNTARY DISMISSAL ) ) Plaintiffs, ) v. ) ) STEVE GRAVES, an individual; et al, ) ) Defendants. ) ____________________________________)

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claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 60910 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. DavenportHarris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Dated: 0m8i78 November 19, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE Trust, Richard Patterson, Donna J. Patterson, Tule River Indian Tribe, Tule River Indian Tribe Council, Betty Hayward, William Barry Shannon, Candance McCarthy Leone, and John Does as trustee for Sopac McCarthy Tompkins Living Trust in light of the Plaintiffs' Rule 41(a)(1) Notice of Dismissal. IT IS SO ORDERED. However, because Defendants Grace C. Nichols and Robert Nichols have filed an answer in this case and because Plaintiffs do not include them in their notice of dismissal, this matter remains open as to Grace C. Nichols and Robert Nichols. Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to terminate Defendants Steve Graves, Candace McCarthy Leone as Trustee of the Candace McCarthy Leone Living The identified Defendants have filed no answers or motions for summary judgment in this case and it appears that no such answers or summary judgment motions have been served by these Defendants. Because Plaintiffs have exercised their right to voluntarily dismiss under Rule 41(a)(1), this case has terminated as to the identified Defendants. See Wilson, 111 F.3d at 692.