Fields v. Rosenthal

Filing 79

ORDER Closing Case In Light Of Unopposed Request To Dismiss (Doc. Nos. 54 , 72 , 75 ), signed by District Judge Anthony W. Ishii on 9/25/2014. IT IS HEREBY ORDERED that: Plaintiffs Rule 41(a)(2) motion for voluntary dismissal (Doc. No. 75 ) is GRANT ED. Defendants motion for summary judgment (Doc. No. 54 ) is DENIED as moot. The Court declines to adopt the July 17, 2014 Findings and Recommendation (Doc. No. 72 ) in light of the Rule 41(a) dismissal. The Clerk shall CLOSE this case. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN FIELDS,

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CASE NO. 1:10-CV-1764 AWI GSA (PC)
Plaintiff

v.

ORDER CLOSING CASE IN LIGHT OF
UNOPPOSED REQUEST TO DISMISS

RICHARD ROSENTHAL.,
Defendant

(Doc. Nos. 54, 72, 75)

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On January 17, 2014, Defendant filed a motion for summary judgment. See Doc. No. 54.
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On July 17, 2014, the Magistrate Judge issued a Findings and Recommendation to dismiss this
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case for failure to prosecute and obey court orders. See Doc. No. 72. On September 10, 2014,
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Plaintiff filed a motion to dismiss this case under Federal Rule of Civil Procedure 41(a). See Doc.
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No. 75. On September 24, 2014, Defendant filed a statement of non-opposition. See Doc. No. 78.
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Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all

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of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy
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Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer or a
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motion for summary judgment but has not signed a stipulation to dismiss, a plaintiff’s voluntary
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dismissal must be effected through Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a);
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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent
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part: “Except as provided in [Rule 41(a)(1)], an action shall not be dismissed at the plaintiff’s

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instance save upon order of the court and upon such terms and conditions as the court deems
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proper. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without

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prejudice.” Fed. R. Civ. Pro. 41(a)(2); Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2003). “A

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district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant

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can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d

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972, 975 (9th Cir. 2001).

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Here, Defendant has filed and served both an answer and a motion for summary judgment,

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and Plaintiff’s motion did not contain a stipulation signed by Defendant. Therefore, an automatic

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dismissal under Rule 41(a)(1) is not possible. See Fed. R. Civ. Pro. 41(a)(1); Wilson, 111 F.3d at

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692. Plaintiff’s motion requests a dismissal of this case due to medical reasons. See Doc. No. 75.

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Defendant does not oppose the request. In light of the non-opposition by Defendant, the Court

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sees no reason to deny Plaintiff’s motion. Therefore, the Court will grant Plaintiff’s motion and

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close this case. See Fed. R. Civ. Pro. 41(a)(2); Hargis, 312 F.3d at 412; Smith, 263 F.3d at 975.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s Rule 41(a)(2) motion for voluntary dismissal (Doc. No. 75) is GRANTED;

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2.

Defendant’s motion for summary judgment (Doc. No. 54) is DENIED as moot;

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3.

The Court declines to adopt the July 17, 2014 Findings and Recommendation (Doc. No.

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72) in light of the Rule 41(a) dismissal; and
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The Clerk shall CLOSE this case.

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IT IS SO ORDERED.
Dated: September 25, 2014
SENIOR DISTRICT JUDGE

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