Yang et al v. Sun Trust Mortgage, Inc.
Filing
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ORDER Dismissing Michael J. Carter without Prejudice in Light of Stipulation of Dismissal, signed by Chief Judge Anthony W. Ishii on 8/4/11. (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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CHANG BEE YANG, an individual, and
LAU YANG, an individual,
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Plaintiffs,
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v.
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SUN TRUST MORTGAGE, INC., a
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Virginia Corporation, et al.
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Defendants.
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____________________________________)
NO. 1:10-CV-01541 AWI SKO
ORDER DISMISSING MICHAEL
J. CARTER WITHOUT
PREJUDICE IN LIGHT OF
STIPULATION OF DISMISSAL
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On August 3, 2011, Plaintiffs filed a stipulation of dismissal of Michael J. Carter only,
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without prejudice, pursuant to Rule 41(a)(1)(ii).
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Rule 41(a)(1), in relevant part, reads:
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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.
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Rule 41(a)(1)(ii) thus allows the parties to dismiss an action voluntarily after service of an
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answer by filing a written stipulation to dismiss signed by all of the parties, although an oral
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stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan Asso., 884 F.2d
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1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 1986). Once the
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stipulation between the parties who have appeared is properly filed or made in open court, no
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order of the court is necessary to effectuate dismissal. Fed. R. Civ. Pro. 41(a)(1)(ii); Eitel, 782
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F.2d at 1473 n.4. “Caselaw concerning stipulated dismissals under Rule 41(a) (1) (ii) is clear
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that the entry of such a stipulation of dismissal is effective automatically and does not require
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judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1989); Gardiner v. A.H. Robins Co.,
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747 F.2d 1180, 1189 (8th Cir. 1984); see also Gambale v. Deutsche Bank AG, 377 F.3d 133, 139
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(2d Cir. 2004); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir.
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1999) cf. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (addressing 41(a)(1)(i)).
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“The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a
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Rule 41(a)(1) notice,” and the dismissal “automatically terminates the action as to the defendants
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who are the subjects of the notice.” Wilson, 111 F.3d at 692; Concha v. London, 62 F.3d 1493,
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1506 (9th Cir. 1995).
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Because Plaintiffs have filed a voluntary dismissal under Rule 41(a)(1) as to only Michael
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J. Carter, this case has terminated as to this Defendant only. See Fed. R. Civ. Pro. 41(a)(1)(ii); In
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re Wolf, 842 F.2d at 466; Gardiner, 747 F.2d at 1189; see also Gambale, 377 F.3d at 139;
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Commercial Space Mgmt, 193 F.3d at 1077; cf. Wilson, 111 F.3d at 692.
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Therefore, IT IS HEREBY ORDERED that Michael J. Carter is DISMISSED from this
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case without prejudice in light of the parties’s filed and properly signed Rule 41(a)(1) voluntary
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dismissal.
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IT IS SO ORDERED.
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Dated:
0m8i78
August 4, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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