American Automobile Association, Inc. v. Days Inn Merced et al
Filing
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ORDER DISMISSING Defendant Tuscany Hospitality, LLC, in Light of Stipulation of Dismissal, signed by Chief Judge Anthony W. Ishii on 6/18/12: Defendant Tuscany Hospitality, LLC, is DISMISSED from this case without prejudice. (Hellings, J)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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AMERICAN AUTOMOBILE
ASSOCIATION, INC., a Connecticut
Corporation,
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Plaintiff,
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v.
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DAYS INN MERCED, an entity of
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unknown form, et al.,
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Defendants.
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____________________________________)
NO. 1:12-CV-00858 AWI DLB
ORDER DISMISSING
DEFENDANT TUSCANY
HOSPITALITY, LLC, IN LIGHT
OF STIPULATION OF
DISMISSAL
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On June 15, 2012, the Plaintiff filed a stipulation of dismissal of Defendant Tuscany
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Hospitality, LLC only, without prejudice, pursuant to Rule 41(a)(1)(ii). The stipulation is signed
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by all parties in this case.
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Rule 41(a)(1), in relevant part, reads:
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(A) . . . 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; or (ii) a stipulation of dismissal signed by all parties who
have appeared . . . (B) Unless the notice or stipulation states otherwise, the
dismissal is without prejudice.
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Rule 41(a)(1)(A)(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)(A)(ii); Eitel,
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782 F.2d at 1473 n.4. “Caselaw concerning stipulated dismissals under Rule 41(a)(1)(A)(ii) is
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clear that the entry of such a stipulation of dismissal is effective automatically and does not
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require judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1989); Gardiner v. A.H.
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Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984); see also Gambale v. Deutsche Bank AG, 377
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F.3d 133, 139 (2d Cir. 2004); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077
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(9th Cir. 1999) cf. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (addressing
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41(a)(1)(i). A plaintiff may dismiss some or all of the defendants, so long as the subject
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defendant has not filed an answer or motion for summary judgment. Pedrina v. Han Kuk Chun,
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987 F.2d 608, 609-10 (9th Cir. 1993).
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Because Plaintiff has filed a voluntary dismissal under Rule 41(a)(1)(ii) as to only
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Defendant Tuscany Hospitality, LLC, this case has terminated as to this Defendant only. See
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Fed. R. Civ. Pro. 41(a)(1)(ii); In re Wolf, 842 F.2d at 466; Gardiner, 747 F.2d at 1189; see also
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Gambale, 377 F.3d at 139; Commercial Space Mgmt, 193 F.3d at 1077; cf. Wilson, 111 F.3d at
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692.
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Therefore, IT IS HEREBY ORDERED that TUSCANY HOSPITALITY, LLC, is
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DISMISSED from this case without prejudice in light of Plaintiff’s filed and properly signed
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Rule 41(a)(1) voluntary dismissal.
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IT IS SO ORDERED.
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Dated:
0m8i78
June 18, 2012
CHIEF UNITED STATES DISTRICT JUDGE
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