Medeiros v. The Law Office of Kevin Z. Shine, PLLC et al

Filing 13

ORDER GRANTING 11 Motion to Vacate Dismissal; ORDER VACATING June 3, 2013 Hearing Date; ORDER DISMISSING ACTION Without Prejudice Pursuant to Rule 41(a)(1), signed by District Judge Anthony W. Ishii on 5/30/2013. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH MEDEIROS,

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Plaintiff,
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v.
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THE LAW OFFICE OF KEVIN Z.
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SHINE, PLLC; DOES 1 through 10,
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inclusive,
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Defendants.
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____________________________________)

1:12-CV-1484 AWI BAM
ORDER GRANTING MOTION
TO VACATE DISMISSAL
ORDER VACATING
JUNE 3, 2013 HEARING DATE
ORDER DISMISSING ACTION
WITHOUT PREJUDICE
PURSUANT TO RULE 41(A)(1)
(Document #11 & #12)

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On October 19, 2012, Plaintiff filed a notice of voluntary dismissal without prejudice

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regarding this action pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. On

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October 24, 2012, Plaintiff filed a proposed order of dismissal. However, this proposed

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order contained the phrase “dismissed, with prejudice”. The same day, the Court signed

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Plaintiff’s proposed order and dismissed this action with prejudice pursuant to Rule 41(a)(1).

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On April 19, 2013, Plaintiff filed a motion to vacate the dismissal with prejudice.

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Plaintiff requests the Court vacate the dismissal and correct it to be a dismissal without

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prejudice. Plaintiff’s motion was set for hearing on June 3, 2013. On May 24, 2013,

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Defendant filed a notice of non-opposition to Plaintiff’s motion to vacate and amend the

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dismissal.

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of

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the District Court. Rule 60(b) permits the Court to relieve a party from a final order or

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judgment on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; . . . or

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(6) any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P.

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60(b). The motion for reconsideration must be made within a reasonable time, in any event

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“not more than one year after the judgment, order, or proceeding was entered or taken.” Id.

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In this action, Plaintiff states that he mistakenly put the phrase “dismissed, with

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prejudice” in the proposed order. Plaintiff states he meant to use the phrase “dismissed

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without prejudice”.

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opposes Plaintiff’s motion nor the Court’s entry of an amended dismissal. Thus, the Court

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will grant Plaintiff’s motion and amend the Court’s dismissal order in this action.

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Defendant has filed a notice in which Defendant states that he neither

Therefore, the Court ORDERS that:

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1.

Plaintiff’s motion to vacate the dismissal order is GRANTED;

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2.

The October 24, 2012 order is VACATED;

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3.

Based on the parties’ briefs, this action is DISMISSED WITHOUT

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PREJUDICE;

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4.

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The previously set hearing date of June 3, 2013 is VACATED as unnecessary;
and

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5.

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The Clerk of the Court is DIRECTED to close this action.

IT IS SO ORDERED.

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Dated:
0m8i78

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May 30, 2013
SENIOR DISTRICT JUDGE

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daw

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