Mayora v. Eslick et al

Filing 42

ORDER for Defendants to Prepare Stipulation of Dismissal re 37 , 28 , 29 and 41 , signed by Magistrate Judge Sheila K. Oberto on 02/17/2016. (14-Day Deadline and 45-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE AUGUSTINE MAYORGA,

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Plaintiff,

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v.

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ESLICK, et al.,

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Case No. 1:14-cv-00099-LJO-SKO (PC)
ORDER FOR DEFENDANTS
TO PREPARE STIPULATION
OF DISMISSAL
(Docs. 37, 38, 39, 41)

Defendants.
_____________________________________/

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Plaintiff, Jose Augustine Mayorga, a state prisoner proceeding pro se and in forma

17 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 23, 2014. On
18 January 15, 2016, Plaintiff filed a notice of withdrawal seeking to dismiss this action which is
19 construed as an attempt to voluntarily dismiss this action pursuant to Federal Rule of Civil
20 Procedure 41 (hereinafter ARule 41@). (Doc. 37.) On January 20, 2016, an order issued directing
21 the parties to advise whether they are willing to stipulate to dismissal of this action pursuant to
22 Rule 41 of the Federal Rules of Civil Procedure. (Doc. 38.)
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On January 25, 2016, Defendants filed a statement of non-opposition indicating that they

24 do not oppose dismissal under Rule 41(a)(1)(A)(i). Alternatively, Defendants “stipulate to
25 dismissal of this action without prejudice pursuant to Rule 41(a)(2)” and “reserve their right to
26 seek payment of all fees, costs and expenses incurred in this action if Plaintiff subsequently re27 files a complaint against Defendants based on or including the same claims raised in this action.”
28 (Doc. 39.) Plaintiff responded that he desires to stipulate to the dismissal of this action on the

1 terms set forth by Defendants in their statement of non-opposition. (Doc. 41.)
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Accordingly, it is HEREBY ORDERED that:

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(1) Within fourteen (14) days of the date of service of this order, Defendants are to

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prepare and forward1 to Plaintiff a stipulation dismissing this action without

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prejudice pursuant to Rule 41(a)(2) wherein they may indicate reservation of their

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right to seek payment of all fees, costs, and expenses incurred in this action in the

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event Plaintiff subsequently re-files a complaint against Defendants based on or

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including the same claims raised in this action;

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(2) Defendants shall simultaneously file with the Court, a copy of their proof of service

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of the stipulation on Plaintiff;

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(3) Plaintiff must sign and return the stipulation to defense counsel within fourteen

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(14) days of receipt; and

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(4) Within forty-five (45) days of the date of service of this order, Defendants must

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file a copy of the fully executed stipulation or a statement indicating why they are

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unable to do so.

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IT IS SO ORDERED.

18 Dated:

February 17, 2016

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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Defendants may personally serve the stipulation on Plaintiff and file the fully executed document within fourteen
(14) days of the date of service of this order. If Defendants forward the stipulation to Plaintiff via the United States
Postal Service, they must include a self-addressed, stamped envelope for Plaintiff to return the signed stipulation to
them.

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