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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RALPH O. DUNCAN,

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Plaintiff,

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CASE NO. 1:16-CV-1633 AWI EPG
AMENDED ORDER DISMISSING
TRANS UNION WITH PREJUDICE
AND STRIKING PRIOR ORDER

v.
EQUIFAX, INC., et al.,

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Defendants.

(Doc. Nos. 9, 12)

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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

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with prejudice Trans Union only. See Doc. No. 9. Although Defendant Equifax had filed an

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answer, Equifax did not sign the stipulation. To date, no other defendant has responded or

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objected to the November 15 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); Warren v. Green Tree Servicing LLC, 2015 U.S.

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Dist. LEXIS 22665, *1-*2 (D. Colo. Feb. 24, 2015); Rachel v. City of Mobile, 2015 U.S. Dist.

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LEXIS 11582, *2-*3 (S.D. Ala. Feb. 2, 2015); 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, because not all of the answering defendants signed the stipulation, the Court will

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view the stipulation as a motion under Rule 41(a)(2). So viewing the stipulation, this case is in the

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early stages of litigation. No other defendant has objected or responded to the stipulated dismissal

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of Trans Union. Given the time that has now passed, the stipulation is unopposed, and there is no

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reason apparent to deny 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:
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.

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IT IS SO ORDERED.
Dated: November 30, 2016
SENIOR DISTRICT JUDGE

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