Charles Windham v. Rodriguez et al
Filing
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ORDER DIRECTING Defendant to Respond to Plaintiff's Notice of Withdrawal from the Prosecution of this case 51 ,signed by Magistrate Judge Stanley A. Boone on 01/22/2018. (Case Management Deadline: 1/26/2018) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHARLES WINDHAM,
Plaintiff,
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v.
C. RODRIGUEZ,
Defendant.
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Case No.: 1:16-cv-00979-AWI-SAB (PC)
ORDER DIRECTING DEFENDANT TO
RESPOND TO PLAINTIFF’S NOTICE OF
WITHDRAWAL FROM THE PROSECUTION OF
THIS CASE
[ECF No. 51]
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Currently before the Court is Plaintiff’s notice of withdrawal from the prosecution of this case,
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filed on January 19, 2018. (ECF No. 51.) Plaintiff asserts that prison officials and defense counsel
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have destroyed evidence and stolen completed and prepared court documents, and he believes the
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Court has not sufficiently responded to his allegations. As a result, it appears Plaintiff seeks to
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voluntarily dismiss this action.
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Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an absolute
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right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for
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summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077
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(9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Here,
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Defendants have filed a motion for summary judgment so Plaintiff cannot voluntarily dismiss this
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action 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 action
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without a court order by filing a stipulation of dismissal signed by all parties who have appeared.”
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Fed. R. Civ. P. 41(a)(1)(A)(ii). Therefore, Plaintiff may dismiss this action by filing a stipulation of
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dismissal that is signed by all parties who have appeared.
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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 addressed to
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the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143,
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145 (9th Cir. 1982). Here, the Court construes Plaintiff’s notice of withdrawal as a motion for
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voluntary dismissal of the action. Accordingly, the Court finds it appropriate to require Defendant
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Rodriguez to respond to this notice.
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Based on the foregoing, on or before Friday, January 26, 2018, Defendant shall file a
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response to the notice or a stipulation to dismiss this action pursuant to Federal Rule of Civil
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Procedure 41.
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IT IS SO ORDERED.
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Dated:
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January 22, 2018
UNITED STATES MAGISTRATE JUDGE
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