Eli Lilly and Company v. Gitmed et al

Filing 60

ORDER Directing Clerk of Court to Terminate Defendant John Derek Gitmed From This Action 59 , signed by Magistrate Judge Stanley A. Boone on 8/28/17: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELI LILLY AND COMPANY,
Plaintiff,

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Case No. 1:16-cv-00178-DAD-SAB
ORDER DIRECTING CLERK OF COURT
TO TERMINATE DEFENDANT JOHN
DEREK GITMED FROM THIS ACTION

v.
JOHN DEREK GITMED, et al.,

(ECF No. 59)

Defendants.

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This action was filed on February 8, 2016. (ECF No. 1.) On August 25, 2017, Plaintiff

18 filed a notice of voluntary dismissal of Defendant John Derek Gitmed without prejudice pursuant
19 to Rule 41(a)(1) of the Federal Rules of Civil Procedure. (ECF No. 59.)
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“[U]nder Rule 41(a)(1)(A)(i), ‘a plaintiff has an absolute right to voluntarily dismiss his

21 action prior to service by the defendant of an answer or a motion for summary judgment.’ ”
22 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999)
23 (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). The Ninth Circuit has
24 held that Rule 41(a) allows a plaintiff to dismiss without a court order any defendant who has yet
25 to serve an answer or motion for summary judgment. Pedrina v. Chun, 987 F.2d 608, 609 (9th
26 Cir. 1993). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required,
27 the parties are left as though no action had been brought, the defendant can’t complain, and the
28 district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt. Co., Inc., 193
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1 F.3d at 1078. In this action, Defendant John Derek Gitmed has not filed an answer or motion for
2 summary judgment.

Therefore, Plaintiff has voluntarily dismissed Defendant John Derek

3 Gitmed.
The only defendant remaining in this action is Anthony Pollino, Jr. (“Defendant

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5 Pollino”). On May 4, 2017, the Court granted in part and denied in part Plaintiff’s application
6 for entry of default judgment (ECF No. 44) against Defendant Pollino. (ECF No. 56.) Plaintiff’s
7 application for entry of default judgment against Defendant Pollino was granted as to liability,
8 but denied as to damages and injunctive relief. (ECF No. 56.)
Accordingly, the Clerk of the Court is DIRECTED to terminate Defendant John Derek

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10 Gitmed from this action. Plaintiff shall file an application for entry of default judgment against
11 Defendant Pollino within thirty (30) days of the date of service of this order.
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IT IS SO ORDERED.

14 Dated:

August 28, 2017
UNITED STATES MAGISTRATE JUDGE

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