West v. Hulbert

Filing 45

ORDER DISMISSING Defendants M. Herrera and Gennial without prejudice on Plaintiff's Voluntary Dismissal; Clerk to Terminate Defendants M. Herrera and Gennial from this case, signed by Magistrate Judge Jennifer L. Thurston on 8/21/18. Gennial and M. Herrera terminated. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MACK A. WEST, Jr., 12 No. 1:16-cv-00046-DAD-JLT (PC) Plaintiff, Defendants. 13 (Doc. 44) v. 14 ORDER DISMISSING DEFENDANTS M. HERRERA AND GENNIAL WITHOUT PREJUDICE ON PLAINTIFF’S VOLUNTARY DISMISSAL, PER FED. R. CIV P. 41(a) HULBERT, et al., 15 16 CLERK TO TERMINATE DEFENDANTS M. HERRERA AND GENNIAL FROM THIS CASE 17 18 19 20 21 22 23 24 25 26 27 28 On August 17, 2018, Plaintiff filed a notice of voluntary dismissal of Defendants M. Herrera and Gennial without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). (Doc. 44.) In Wilson v. City of San Jose, the Ninth Circuit explained: Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant’s service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, 1 3 the dismissal is ordinarily without prejudice to the plaintiff’s right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id. 4 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Neither Defendant M. Herrera or 5 Gennial have been served, let alone filed answers to Plaintiff’s Complaint. (See Docs. 38, 39.) 6 Likewise neither has filed a motion for summary judgment and it appears that no such answers or 7 summary judgment motions have been served. 1 2 8 9 Since Plaintiff has exercised his right to voluntarily dismiss Defendants M. Herrera and Gennial under Rule 41(a)(1), they have been terminated from this action. The Clerk is ordered to 10 terminate Defendants M. Herrera and Gennial from this action and to enter their termination on 11 the docket. 12 13 14 IT IS SO ORDERED. Dated: August 21, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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