Duncan v. Equifax Inc., et al.

Filing 13

AMENDED ORDER DISMISSING Trans Union with Prejudice and STRIKING Prior 13 Order signed by District Judge Anthony W. Ishii on 11/30/2016. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RALPH O. DUNCAN, 10 Plaintiff, 11 12 CASE NO. 1:16-CV-1633 AWI EPG AMENDED ORDER DISMISSING TRANS UNION WITH PREJUDICE AND STRIKING PRIOR ORDER v. EQUIFAX, INC., et al., 13 Defendants. (Doc. Nos. 9, 12) 14 15 16 17 18 This order amends and replaces the Court’s dismissal order of November 11, 2016. Doc. No. 12. On November 15, 2016, Plaintiff and Defendant Trans Union filed a stipulated dismissal 19 with prejudice Trans Union only. See Doc. No. 9. Although Defendant Equifax had filed an 20 answer, Equifax did not sign the stipulation. To date, no other defendant has responded or 21 objected to the November 15 stipulation. 22 Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all 23 of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy 24 Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer, but has 25 not signed a stipulation to dismiss, a plaintiff’s voluntary dismissal of an “action” must be effected 26 through Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of 27 San Jose, 111 F.3d 688, 692 (9th Cir. 1999); Warren v. Green Tree Servicing LLC, 2015 U.S. 28 Dist. LEXIS 22665, *1-*2 (D. Colo. Feb. 24, 2015); Rachel v. City of Mobile, 2015 U.S. Dist. 1 LEXIS 11582, *2-*3 (S.D. Ala. Feb. 2, 2015); Local 2-1971 of PACE Intl. Union v. Cooper, 364 2 F.Supp.2d 546, 551 (W.D. N.C. 2005); Sullivan b. Bankhead Enterprises, Inc., 108 F.R.D. 378, 3 382 (D. Mass. 1985). Rule 41(a)(2) provides in pertinent part: “Except as provided in Rule 4 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that 5 the court considers proper.” Fed. R. Civ. Pro. 41(a)(2). “A district court should grant a motion for 6 voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain 7 legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). 8 Here, because not all of the answering defendants signed the stipulation, the Court will 9 view the stipulation as a motion under Rule 41(a)(2). So viewing the stipulation, this case is in the 10 early stages of litigation. No other defendant has objected or responded to the stipulated dismissal 11 of Trans Union. Given the time that has now passed, the stipulation is unopposed, and there is no 12 reason apparent to deny dismissal. See Fed. R. Civ. Pro. 41(a)(2); Smith, 263 F.3d at 975. 13 14 15 16 17 18 Accordingly, IT IS HEREBY ORDERED that: 1. Pursuant to Rule 41(a)(2), Defendant Trans Union is DISMISSED from this action with prejudice; and 2. Document No. 12 in the Court’s docket, the prior order dismissing Trans Union, is STRICKEN. 19 20 21 IT IS SO ORDERED. Dated: November 30, 2016 SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28 2

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