Digman et al v. Cummings et al

Filing 43

ORDER DISMISSING CASE signed by Chief Judge Anthony W. Ishii on 7/20/2012. CASE CLOSED.(Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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EVA DIGMAN and RED CANYON
TRANSPORT, LLC,

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Plaintiffs,
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v.
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BRIAN CUMMINGS, et al.
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Defendants.
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____________________________________)

NO. 1:11-CV-01901 AWI SKO
ORDER DISMISSING AND
CLOSING CASE IN LIGHT OF
PLAINTIFFS’ REQUEST FOR
DISMISSAL

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On July 9, 2012, Plaintiffs filed their notice of dismissal under Federal Rule of Civil

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Procedure 41(a)(1)(A)(i). However, Plaintiffs’ request was not signed by Defendants who have

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filed an answer. Therefore, Rule 41(a)(1) does not apply. See Federal Rule of Civil Procedure

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41(a)(1)(A)(i).

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However, Plaintiffs filed their request on July 9, 2012 and Defendants have yet to

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respond. The Court considers Plaintiffs’ motion as a request for dismissal under Rule 41(a)(2).

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Rule 41(a)(2) of the Federal Rules of Civil Procedure provides:

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Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be
dismissed at the plaintiff's instance save upon order of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded by a defendant
prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall
not be dismissed against the defendant's objection unless the counterclaim can remain
pending for independent adjudication by the court. Unless otherwise specified in the
order, a dismissal under this paragraph is without prejudice

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Fed. R. Civ. Pro. 41(a)(2).

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Defendants have not filed a counterclaim and the Court sees no prejudice against

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Defendants by dismissing this case. Given the absence of any response by, or prejudice, to

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Defendants, the Court will dismiss this case under Rule 41(a)(2).

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Accordingly, IT IS HEREBY ORDERED that:

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This case is DISMISSED in its entirety, without prejudice, pursuant to Rule 41(a)(2); and

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all other pending motions are DENIED as moot.
The Clerk of the court is ordered to close this case.

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IT IS SO ORDERED.

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Dated:
0m8i78

July 20, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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