Alvin Souza v. Fernandes et al

Filing 10

ORDER Dismissing Defendant A.L. Gilbert Company And The Sixth Cause Of Action By Plaintiff In Light Of Stipulation Of Dismissal, signed by Chief Judge Anthony W. Ishii on 5/18/2010. It is ORDERED that Defendant A.L. Gilbert Company and the Sixth Cause of Action are DISMISSED from this case without prejudice in light of Plaintiff's filed and properly signed Rule 41(a)(1) voluntary dismissals.(Scrivner, E)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Rule 41(a)(1)(ii) thus allows the parties to dismiss an action voluntarily after service of an 25 answer by filing a written stipulation to dismiss signed by all of the parties, although an oral 26 stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan Asso., 884 F.2d 27 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 1986). Once the 28 On May 17, 2010, the Plaintiff filed stipulations of dismissal of Defendant A.L. Gilbert Company, and dismissal of Sixth Cause of Action only, without prejudice. Although not stated in the notices, the Court construes them as notices made pursuant to Federal Rule of Civil Procedure 41(a)(1). Rule 41(a)(1), in relevant part, reads: 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. ALVIN L. SOUZA dba ALVIN SOUZA DAIRY, ) ) ) Plaintiff, ) v. ) ) LUIS OLIVEIRA FERNANDES, et al., ) ) Defendants. ) ____________________________________) NO. 1:10-CV-00832-AWI-GSA ORDER DISMISSING DEFENDANT A.L. GILBERT COMPANY AND THE SIXTH CAUSE OF ACTION BY PLAINTIFF IN LIGHT OF STIPULATION OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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

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. Pro. 41(a)(1)(ii); Eitel, 782 F.2d at 1473 n.4. "Caselaw concerning stipulated dismissals under Rule 41(a) (1) (ii) is clear that the entry of such a stipulation of dismissal is effective automatically and does not require judicial approval." In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1989); 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. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999) cf. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (addressing 41(a)(1)(i)). "The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice," and the dismissal "automatically terminates the action as to the defendants who are the subjects of the notice." Wilson, 111 F.3d at 692; Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). Because Plaintiff has filed a voluntary dismissal under Rule 41(a)(1) as to Defendant A.L. Gilbert Company, this case has terminated as to this Defendant only. Furthermore, pursuant to the stipulation filed by Plaintiff, the Sixth Cause of Action of the above-entitled action is dismissed without prejudice. See Fed. R. Civ. Pro. 41(a)(1)(ii); In re Wolf, 842 F.2d at 466; Gardiner, 747 F.2d at 1189; see also Gambale, 377 F.3d at 139; Commercial Space Mgmt, 193 F.3d at 1077; cf. Wilson, 111 F.3d at 692. Therefore, IT IS HEREBY ORDERED that Defendant A.L. Gilbert Company and the Sixth Cause of Action are DISMISSED from this case without prejudice in light of Plaintiff's filed and properly signed Rule 41(a)(1) voluntary dismissals.

IT IS SO ORDERED. Dated: 0m8i78 May 18, 2010 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

2