McMaster v. Spearman et al

Filing 146

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)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DANA McMASTER, 10 11 12 Plaintiff, v. SPEARMAN, et al., 13 Defendants. 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 RECOMMENDATION (Docs. 144, 145) 14 15 16 Plaintiff, Dana McMaster, is a former state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. This action proceeds on 18 Plaintiff’s Second Amended Complaint, filed January 3, 2013, against Defendants Sedwick, 19 Espitia, and Pease of failure to protect Plaintiff, in violation of the Eighth Amendment, and 20 against Defendant Carlson for retaliation, in violation of the First Amendment. 21 On August 11, 2017, the parties filed a stipulation of voluntary dismissal with prejudice of 22 this matter pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). Rule 41(a)(1)(A), in relevant 23 part, reads: 24 25 26 27 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. 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, 28 1 1 although an oral stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan 2 Asso., 884 F.2d 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 3 1986). Once the stipulation between the parties who have appeared is properly filed or made in 4 open court, no order of the court is necessary to effectuate dismissal. Fed. R. Civ. Pro. 5 41(a)(1)(ii); Eitel, 782 F.2d at 1473 n.4. “Caselaw concerning stipulated dismissals under Rule 6 41(a)(1)(ii) is clear that the entry of such a stipulation of dismissal is effective automatically and 7 does not require judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1989); Gardiner v. 8 A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984); see also Gambale v. Deutsche Bank AG, 9 377 F.3d 133, 139 (2d Cir. 2004); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 10 11 12 13 14 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] 15 16 17 18 19 20 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: 21 22 1. 41(a)(1)(A)(ii) Stipulation For Voluntary Dismissal With Prejudice; and 23 24 25 26 27 The Clerk is ordered to close this case in light of the filed and properly signed Rule 2. The August 9, 2017, Findings and Recommendation (Doc. No. 144) is MOOT. IT IS SO ORDERED. Dated: August 14, 2017 SENIOR DISTRICT JUDGE 28 2

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