Furnace v. Cope et al

Filing 69

ORDER Directing Defendant to Respond to Plaintiff's Motion to Dismiss Action, signed by Magistrate Judge Barbara A. McAuliffe on 10/26/2021. Seven-Day Deadline. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD FURNACE,

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Plaintiff,
v.
VILLA,

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Case No. 1:16-cv-00420-NONE-BAM (PC)
ORDER DIRECTING DEFENDANT TO
RESPOND TO PLAINTIFF’S MOTION TO
DISMISS ACTION
(ECF No. 68)

Defendant.

SEVEN (7) DAY DEADLINE

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Plaintiff Edward Furnace (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s second amended complaint against Defendant Villa for excessive force in violation of

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the Eighth Amendment.

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This action is now ready to be set for a jury trial and is set for a telephonic status

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conference on November 10, 2021 at 10:00 a.m. to discuss setting the relevant deadlines and a

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possible trial date. (ECF No. 65.)

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Currently before the Court is Plaintiff’s Motion to Dismiss Action, filed October 25, 2021.

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(ECF No. 68.) Plaintiff states that he stipulates to dismiss this action pursuant to Fed. R. Civ. P.

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41(a)(1). (Id.)

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Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “ ‘a plaintiff has an

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absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a

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motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193
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F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

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1997)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action

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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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action without a court order by filing a stipulation of dismissal signed by all parties who have

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appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). Therefore, Plaintiff may dismiss this action by filing a

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stipulation of dismissal that is signed by all parties who have appeared. However, the motion

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filed by Plaintiff includes only Plaintiff’s signature.

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A party may also dismiss an action by filing a motion requesting the Court to dismiss the

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action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is

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addressed to the sound discretion of the district court. Hamilton v. Fireston Tire & Rubber Co.

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Inc., 679 F.2d 143, 145 (9th Cir. 1982).

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The Court finds that Plaintiff is attempting to file a motion to dismiss this action pursuant

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to Rule 41(a)(2). Therefore, Defendant is directed to file an opposition or statement of non-

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opposition to the motion. Alternatively, Defendant may obtain a stipulation of dismissal that is

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signed by all parties appearing in this action.

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Accordingly, within seven (7) days from the date of service of this order, Defendant is
DIRECTED to file either:
1. An opposition or statement of non-opposition to Plaintiff’s motion to dismiss this action;
or
2. A stipulation to dismiss this action pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(ii), signed by all parties appearing in this action.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 26, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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