Viola Coppola, et al v. Gregory Smith, et al

Filing 360

ORDER DISMISSING Defendants Harley Miller and Cheryl Miller in Light of Unopposed Request to Dismiss 356 , signed by District Judge Anthony W. Ishii on 1/25/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE VIOLA M. COPPOLA
IRREVOCABLE TRUST, et al.,
Plaintiff

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CASE NO. 1:11-CV-1257 AWI BAM

v.
PARAGON CLEANERS, INC., et al.,
Defendants

ORDER DISMISS DEFENDANTS
HARLEY MILLER AND CHERYL
MILLER IN LIGHT OF UNOPPOSED
REQUEST TO DISMISS
(Doc. No. 356)

_____________________________________
AND RELATED CLAIMS

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This is a complex CERCLA case involving a contamination plume in Visalia, California.

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On December 29, 2015, Plaintiffs filed a notice of voluntary dismissal without prejudice of Harley

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Miller and Cheryl Miller. See Doc. No. 356. Although other parties have filled answers and other

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pleadings, these individuals have not appeared in this case. Nearly 30 days have now passed since

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Plaintiffs’ notice of dismissal, and no party responded to it.

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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, but has

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not signed a stipulation to dismiss, a plaintiff’s voluntary dismissal must be effected through

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Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of San Jose,

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111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent part: “Except as provided

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in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on

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terms that the court considers proper.” Fed. R. Civ. Pro. 41(a)(2). “A district court should grant a

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motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer

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some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).

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Here, neither Harley Miller nor Cheryl Miller have appeared, and no other defendant or

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party has objected or responded to Plaintiffs’ requested dismissal. Given the time that has now

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passed, the Court will view Plaintiffs’ request as being unopposed. The Court sees no reason to

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deny Plaintiffs’ requested dismissal without prejudice. See Fed. R. Civ. Pro. 41(a)(2); Smith, 263

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F.3d at 975.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Pursuant to Rule 41(a)(2), Plaintiffs’ requested dismissal without prejudice of
Harley Miller and Cheryl Miller (Doc. No. 356) is GRANTED; and

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Defendants Harley Miller and Cheryl Miller are DISMISSED from this action.

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IT IS SO ORDERED.
Dated: January 25, 2016
SENIOR DISTRICT JUDGE

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