Presas v. Kern Medical Center et al

Filing 78

ORDER Closing Case in Light of Stipulation for Dismissal With Prejudice 76 , 77 , signed by Magistrate Judge Sheila K. Oberto on 12/4/2018. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COSME PRESAS,

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No. 1:13-cv-02038-DAD-SKO (PC)

Plaintiff,
ORDER CLOSING CASE IN LIGHT OF
STIPULATION FOR DISMISSAL WITH
PREJUDICE

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v.

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FUSSEL, et al.,
(Docs. 76, 77)

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Defendants.

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Plaintiff, Cosme Presas, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983. On December 3, 2018, the parties filed a

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stipulation of voluntary dismissal with prejudice of this matter pursuant to Federal Rule of Civil

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Procedure 41(a)(1)(A)(ii).1

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Rule 41(a)(1)(A), in relevant part, reads:

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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; (ii) a stipulated dismissal signed by all
parties who have appeared.

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Rule 41(a)(1)(A)(ii) thus allows the parties to dismiss an action voluntarily, after service

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of an answer, by filing a written stipulation to dismiss signed by all of the parties who have

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appeared, although an oral stipulation in open court will also suffice. Carter v. Beverly Hills Sav.

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& Loan Asso., 884 F.2d 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73

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Plaintiff filed a separate notice of voluntary dismissal under Rule 41(a) that same day. (See Doc. 77.)

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(9th Cir. 1986). Once the stipulation between the parties who have appeared is properly filed or

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made in open court, no order of the court is necessary to effectuate dismissal. Fed. R. Civ. Pro.

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41(a)(1)(ii); Eitel, 782 F.2d at 1473 n.4. “Caselaw concerning stipulated dismissals under Rule

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41(a)(1)(ii) is clear that the entry of such a stipulation of dismissal is effective automatically and

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does not require judicial approval.” In re Wolf, 842 F.2d 464, 466 (D.C. Cir. 1989); Gardiner v.

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A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir. 1984); see also Gambale v. Deutsche Bank AG,

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377 F.3d 133, 139 (2d Cir. 2004); Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074,

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1077 (9th Cir. 1999) cf. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (addressing

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Rule 41(a)(1) dismissals). “The plaintiff may dismiss some or all of the defendants, or some or

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all of his claims, through a Rule 41(a)(1) notice,” and the dismissal “automatically terminates the

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action as to the defendants who are the subjects of the notice.” Wilson, 111 F.3d at 692; Concha

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v. London, 62 F.3d 1493, 1506 (9th Cir. 1995).

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This case terminated when the parties filed a stipulation for dismissal with prejudice under

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Rule 41(a)(1)(A)(ii) that was properly signed by all parties who have appeared in this action. See

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Fed. R. Civ. Pro. 41(a)(1)(A)(ii); In re Wolf, 842 F.2d at 466; Gardiner, 747 F.2d at 1189; see

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also Gambale, 377 F.3d at 139; Commercial Space Mgmt, 193 F.3d at 1077; cf. Wilson, 111 F.3d

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at 692.

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Therefore, IT IS HEREBY ORDERED that the Clerk of the Court close this case in light

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of the properly executed Stipulation Of Dismissal With Prejudice under Federal Rule of Civil

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Procedure 41(a)(1)(A)(ii) that was filed on December 3, 2018, (Doc. 76).

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IT IS SO ORDERED.
Dated:

December 4, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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