Gobel v. Hauser & Hauser, Inc. et al.

Filing 21

ORDER Disregarding Notice of Voluntary Dismissal signed by Magistrate Judge Stanley A. Boone on 10/24/2017. Fourteen-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DISREGARDING NOTICE OF
VOLUNTARY DISMISSAL

Plaintiff,

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Case No. 1:16-cv-00146-LJO-SAB

RUSTY GOBEL,

v.
(ECF No. 18)

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HAUSER & HAUSER, INC., et al.,
FOURTEEN DAY DEADLINE

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Defendants.

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Plaintiff Rusty Gobel filed this action against Defendants Hauser & Hauser, Inc., Kevin

18 Hauser, and Claudia Hauser (“Defendants”) on January 29, 2016. (ECF No. 1.) A first amended
19 complaint was filed on March 3, 2016. (ECF No. 4.) On May 27, 2017, Defendants filed an
20 answer to the first amended complaint. (ECF No. 6.) On October 20, 2017, Plaintiff filed a
21 notice of voluntary dismissal. (ECF No. 18.) Plaintiff requests that the Court dismiss this action
22 in its entirety, with prejudice, based on the execution of a settlement between the parties.
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Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an

24 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a
25 motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193
26 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.
27 1997)). Here, Defendants have filed an answer so Plaintiff cannot voluntarily dismiss this action
28 pursuant to Rule 41(a)(1)(A)(i).

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Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an

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2 action without a court order by filing a stipulation of dismissal signed by all parties who have
3 appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). Therefore, Plaintiff may dismiss this action by filing
4 a stipulation of dismissal that is signed by all parties who have appeared.
A party may also dismiss an action by filing a motion requesting the Court to dismiss the

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6 action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is
7 addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co.
8 Inc., 679 F.2d 143, 145 (9th Cir. 1982).
Plaintiff’s notice of voluntary dismissal is defective under Rule 41(a). If Plaintiff wishes

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10 to dismiss this action, he is required to comply with the procedures set forth in Rule 41.
Accordingly, Plaintiff’s notice of settlement is HEREBY DISREGARDED. Plaintiff

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12 shall file a request for dismissal that complies with Rule 41 within fourteen (14) days from the
13 date of entry of this order.
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IT IS SO ORDERED.

16 Dated:

October 24, 2017
UNITED STATES MAGISTRATE JUDGE

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