McMaster v. Spearman et al
ORDER Closing Action in Light of Stipulation for Voluntary Dismissal with Prejudice and Order on Findings and Recommendation signed by District Judge Anthony W. Ishii on 08/14/2017. (Flores, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SPEARMAN, et al.,
Case No. 1:10-cv-01407-AWI-SKO (PC)
ORDER CLOSING ACTION IN LIGHT OF
STIPULATION FOR VOLUNTARY
DISMISSAL WITH PREJUDICE and
ORDER ON FINDINGS AND
(Docs. 144, 145)
Plaintiff, Dana McMaster, is a former state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. This action proceeds on
Plaintiff’s Second Amended Complaint, filed January 3, 2013, against Defendants Sedwick,
Espitia, and Pease of failure to protect Plaintiff, in violation of the Eighth Amendment, and
against Defendant Carlson for retaliation, in violation of the First Amendment.
On August 11, 2017, the parties filed a stipulation of voluntary dismissal with prejudice of
this matter pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). Rule 41(a)(1)(A), in relevant
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
Rule 41(a)(1)(A)(ii) thus allows the parties to dismiss an action voluntarily, after service of an
answer, by filing a written stipulation to dismiss signed by all of the parties who have appeared,
although an oral stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan
Asso., 884 F.2d 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir.
1986). Once the 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
Rule 41(a)(1) dismissals). “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 the parties have filed a stipulation for dismissal of this case with [without]
prejudice under Rule 41(a)(1)(A)(ii) that is signed by all parties who have made an appearance,
this case has terminated. See Fed. R. Civ. Pro. 41(a)(1)(A)(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. With the termination of this case, a Findings and
Recommendation, issued by the Magistrate Judge on August 8, 2017, is now moot.
Therefore, IT IS HEREBY ORDERED that:
41(a)(1)(A)(ii) Stipulation For Voluntary Dismissal With Prejudice; and
The Clerk is ordered to close this case in light of the filed and properly signed Rule
The August 9, 2017, Findings and Recommendation (Doc. No. 144) is MOOT.
IT IS SO ORDERED.
Dated: August 14, 2017
SENIOR DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?