Verragio, Ltd. v. Malakan Diamond Co.

Filing 34

ORDER DISMISSING Certain Cross-Defendants Without Prejudice, signed by Magistrate Judge Sheila K. Oberto on 3/28/17: The Clerk of the Court is directed to TERMINATE Cross-Defendants Jensen Jewelers of Idaho, LLC, Harold Jaffe Jewelry, Inc., and AE Jewelers, Inc. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERRAGIO, LTD,

Case No.: 16-cv-01647-DAD-SKO

Plaintiff,
v.
MALAKAN DIAMOND CO.,
Defendant.
___________________________________

ORDER DISMISSING CERTAIN
CROSS-DEFENDANTS WITHOUT
PREJUDICE

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MALAKAN DIAMOND CO.,
Counterclaimant/Cross-Claimant,
v.
VERRAGIO, LTD.: AE JEWELERS, INC.; AE
JEWELERS OF APPLETON,, LLC.; HAROLD
JAFFE JEWELRY, INC.; JENSEN JEWELERS
OF IDAHO, LLC: and DOES 1 to 10, inclusive,
Counterclaim and Cross-Claim
Defendants.
On March 28, 2017, Cross-claimant Malakan Diamond Co. filed a notice of voluntary

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dismissal for Cross-defendants Jensen Jewelers of Idaho, LLC, Harold Jaffe Jewelry, Inc. and AE

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Jewelers, Inc., without prejudice. (Doc. 33.) Cross-claimant’s notice is provided under Federal

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Rule of Civil Procedure 41(a)(1)(A)(i).

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The Ninth Circuit has explained:

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“Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior
to service by the defendant of an answer or a motion for summary judgment. Concha v.
London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman
American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action
so long as the plaintiff files a notice of dismissal prior to the defendant’s service of an
answer or motion for summary judgment. The dismissal is effective on filing and no court

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YARRA, KHARAZI,
CLASON &
ANIOTZBEHERE
2000 Fresno Street
Fresno, CA 93721

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ORDER DISMISSING CERTAIN CROSS-DEFENDANTS WITHOUT PREJUDICE

order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or
all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 60910 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court
automatically terminates the action as to the defendants who are the subjects of the notice.
Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is ordinarily without
prejudice to the plaintiff's right to commence another action for the same cause against the
same defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930,
934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been
brought. Id.”

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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).

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No answers to the cross-complaint and no motions for summary judgment have been filed
in this case, and no such answers or motions for summary judgment appear to have been served.
See Wilson, 111 F.3d at 692.

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Because Cross-claimant filed a notice of dismissal of this case without prejudice under Rule

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41(a)(1)(A)(i), this case has automatically terminated as to Cross-defendants Jensen Jewelers of

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Idaho, LLC, Harold Jaffe Jewelry, Inc., and AE Jewelers, Inc. Fed. R. Civ. P. 41(a)(1)(A)(i).

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Accordingly, the Clerk of the Court is directed to TERMINATE Cross-defendants Jensen Jewelers

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of Idaho, LLC, Harold Jaffe Jewelry, Inc., and AE Jewelers, Inc.

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IT IS SO ORDERED.

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Dated:

March 28, 2017

/s/

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Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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YARRA, KHARAZI,
CLASON &
ANIOTZBEHERE
2000 Fresno Street
Fresno, CA 93721

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ORDER DISMISSING CERTAIN CROSS-DEFENDANTS WITHOUT PREJUDICE

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