R.R., et al. v. County of Tulare, et al.

Filing 22

ORDER DISMISSING City of Visalia from this action, signed by District Judge Anthony W. Ishii on 8/17/2016. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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R.R. a minor by and through his guardian
ad litem Debra Ruiz, et al.,
Plaintiff,

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CASE NO. 1:16-CV-0570 AWI SKO
ORDER DISMISSING DEFENDANT
CITY OF VISALIA

v.
COUNTY OF TULARE, et al.,

(Doc. No. 21)

Defendant.

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On August 9, 2016, Plaintiffs and Defendant the City of Visalia filed a stipulated dismissal

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of the City of Visalia only. See Doc. No. 21. Although other defendants have filled answers, no

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other defendant signed the stipulation. To date, no other defendant has responded or objected to

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the August 9 stipulation.

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Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all

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of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy

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Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer, but has

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not signed a stipulation to dismiss, a plaintiff’s voluntary dismissal of an “action” must be effected

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through Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of

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San Jose, 111 F.3d 688, 692 (9th Cir. 1999); Local 2-1971 of PACE Intl. Union v. Cooper, 364

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F.Supp.2d 546, 551 (W.D. N.C. 2005); Sullivan b. Bankhead Enterprises, Inc., 108 F.R.D. 378,

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382 (D. Mass. 1985). Rule 41(a)(2) provides in pertinent part: “Except as provided in Rule

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41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that

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the court considers proper.” Fed. R. Civ. Pro. 41(a)(2). “A district court should grant a motion for

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voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain

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legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).

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Here, this case is in the early stages of litigation. No other defendant has objected or

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responded to the stipulated dismissal of the City of Visalia. Given the time that has now passed,

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the Court will view stipulation as being unopposed. So viewing the stipulation, there is no reason

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apparent to deny the stipulated dismissal. See Fed. R. Civ. Pro. 41(a)(2); Smith, 263 F.3d at 975.

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Accordingly, IT IS HEREBY ORDERED that pursuant to Rule 41(a)(2), Defendant the
City of Visalia is DISMISSED from this action.

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IT IS SO ORDERED.
Dated: August 17, 2016
SENIOR DISTRICT JUDGE

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