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)

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