Gutierrez v. Nunez et al

Filing 21

Notice of Voluntary Dismissal Without Prejudice as to Defendant Augustin Orozco Only; ORDER Directing the Clerk of Court to Terminate Defendant Augustin Orozco From the Docket re 19 signed by Magistrate Judge Gary S. Austin on 11/26/2014. (Martinez, A)

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Tanya E. Moore, SBN 206683
MOORE LAW FIRM, P.C.
332 North Second Street
San Jose, California 95112
Telephone [phone]
Facsimile [phone]
Email: [e-mail]
Attorneys for Plaintiff
Natividad Gutierrez

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NATIVIDAD GUTIERREZ,

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Plaintiff,
vs.
MANUEL NUNEZ, et al.,

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Defendants.

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) Case No. 1:14-CV-01066-GSA
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NOTICE OF VOLUNTARY DISMISSAL
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WITHOUT PREJUDICE AS TO
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DEFENDANT AUGUSTIN OROZCO
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ONLY; ORDER DIRECTING THE
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CLERK OF COURT TO TERMINATE
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DEFENDANT AUGUSTIN OROZCO
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FROM THE DOCKET
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)
(Doc. 19)

WHEREAS, Defendant Augustin Orozco has not filed an answer or motion for summary
judgment;
WHEREAS, no counterclaims or cross-claims have been filed;

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Plaintiff hereby dismisses only Defendant Augustin Orozco without prejudice,
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pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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Date: November 26, 2014

MOORE LAW FIRM, P.C.

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/s/ Tanya E. Moore
Tanya E. Moore
Attorneys for Plaintiff
Natividad Gutierrez

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NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE AS TO DEFENDANT
AUGUSTIN OROZCO ONLY; ORDER

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ORDER

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On November 24, 2014, Plaintiff Natividad Gutierrez (“Plaintiff”) filed the foregoing

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notice of voluntary dismissal as to Defendant Augustin Orozco, pursuant to Federal Rule of

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Civil Procedure 41(a)(1)(A)(i). Doc. 19.

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A plaintiff may voluntarily dismiss a defendant from an action pursuant to Federal Rule
of Civil Procedure 41(a)(1)(A). Rule 41(a)(1)(A), in relevant part, provides:

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[T]he 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.

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“The plaintiff may dismiss either some or all of the defendants—or some or all of his claims—

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through a Rule 41(a)(1) notice.” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). Rule

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41(a)(1)(B) further provides that a dismissal pursuant to Rule 41(a)(1)(A) is without prejudice

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“[u]nless the notice or stipulation states otherwise.”

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A notice of dismissal under Rule 41(a)(1) is self-executing; a court order is not required
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to effectuate the dismissal. Concha, 62 F.3d at 1506 (“The dismissal is effective on filing [of a

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notice pursuant to Rule 41(a)(1)] and no court order is required.”). “Filing a notice of

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voluntary dismissal with the court automatically terminates the action as to the defendants who

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are the subjects of the notice.” Id. “Such a dismissal leaves the parties as though no action had

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been brought.” Id.
Here Plaintiff has filed a notice of voluntary dismissal, without prejudice, as to

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Defendant Augustin Orozco, before the latter has served an answer. Therefore, pursuant to

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Rule 41(a)(1)(A), the dismissal, without prejudice, of Defendant Augustin Orozco was

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NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE AS TO DEFENDANT
AUGUSTIN OROZCO ONLY; ORDER

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effective upon the filing of Plaintiff’s notice of voluntary dismissal. Accordingly, the Clerk of

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Court is directed to terminate Defendant Augustin Orozco from the docket.

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IT IS SO ORDERED.
Dated:

November 26, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE AS TO DEFENDANT
AUGUSTIN OROZCO ONLY; ORDER

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