Kingsburg Apple Packers, et al, vs. Ballantine Produce Co., Inc. et al,

Filing 292

ORDER Closing the Intervenor Action in this Case Due to Voluntary Dismissal of Intervenor Plaintiff without Prejudice, signed by Chief Judge Anthony W. Ishii on 8/10/12. DiBuduo Land Management terminated. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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KINGSBURG APPLE PACKERS, INC.,
dba KINGSBURG ORCHARDS, a
California corporation, et al.,

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Plaintiffs,
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v.
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BALLANTYINE PRODUCE CO., INC.,
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a California corporation, et al.,
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Defendants.
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____________________________________)
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DiBUDUO LAND MANAGEMENT, a
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California corporation,
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Intervenor,
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v.
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BALLANTINE PRODUCE CO., INC., a
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California corporation,
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Defendant.
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____________________________________)

No. 1:09-cv-00901 AWI JLT
ORDER CLOSING THE
INTERVENOR ACTION IN THIS
CASE DUE TO VOLUNTARY
DISMISSAL BY INTERVENOR
PLAINTIFF WITHOUT
PREJUDICE

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On August 8, 2012, Intervenor Plaintiff DiBUDUO LAND MANAGEMENT, a

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California corporation, filed a request for dismissal of its Complaint In Intervention for Damages

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and to Impose PACA Trust and Demand for Jury Trial without prejudice. This notice is made

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pursuant to Federal Rule of Civil Procedure 41(a)(1)(i).

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In Wilson v. City of San Jose, the Ninth Circuit explained:

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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

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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
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.

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

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No answers to Intervenor Plaintiff’s complaint and no motions for summary judgment

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have been filed in this case and it appears that no such answers or summary judgment motions

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have been served. Because Intervenor Plaintiff has exercised its right to voluntarily dismiss the

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complaint under Rule 41(a)(1), the Intervenor action in this case has terminated. See Wilson,

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111 F.3d at 692.

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Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close the Intervenor

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action ONLY in this case in light of Intervenor Plaintiff’s Rule 41(a)(1)(i) requested dismissal

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without prejudice.

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IT IS SO ORDERED.

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Dated:
0m8i78

August 10, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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