Verragio, Ltd. v. Malakan Diamond Co.

Filing 56

ORDER DISMISSING Cross-Defendant AE Jewelers of Appleton, LLC WITHOUT PREJUDICE 55 , signed by Magistrate Judge Sheila K. Oberto on 8/8/17. (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 CROSSDEFENDANT AE JEWELERS OF
APPLETON, LLC WITHOUT
PREJUDICE
(Doc. 55)

MALAKAN DIAMOND CO.,
Counterclaimant/Cross-Claimant,
v.
VERRAGIO, LTD.; AE JEWELERS OF
APPLETON, LLC.; and DOES 1 to 10,
inclusive,
Counterclaim and Cross-Claim
Defendants.
On August 7, 2017, Cross-claimant Malakan Diamond Co. filed a notice of voluntary

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dismissal for Cross-defendant AE Jewelers of Appleton, LLC, without prejudice. (Doc. 55.)
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Cross-claimant’s notice is provided under Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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The Ninth Circuit has explained:
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YARRA, KHARAZI,
CLASON &
ANIOTZBEHERE
2000 Fresno Street
Fresno, CA 93721

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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 order is required. Id.
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YARRA, KHARAZI
& ASSOCIATES
1250 Fulton Mall
Fresno, CA 93721

ORDER DISMISSING CROSS-DEFENDANT AE JEWELERS OF APPLETON, LLC. WITHOUT PREJUDICE

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. DavenportHarris 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

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this case, and no such answers or motions for summary judgment appear to have been served. See

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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-defendant AE Jewelers of

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Appleton, LLC. Fed. R. Civ. P. 41(a)(1)(A)(i). Accordingly, the Clerk of the Court is directed to

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TERMINATE Cross-defendant AE Jewelers of Appleton, LLC.

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IT IS SO ORDERED.
Dated:

August 8, 2017

/s/

Sheila K. Oberto

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UNITED STATES MAGISTRATE JUDGE

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

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YARRA, KHARAZI
& ASSOCIATES
1250 Fulton Mall
Fresno, CA 93721

ORDER DISMISSING CROSS-DEFENDANT AE JEWELERS OF APPLETON, LLC. WITHOUT PREJUDICE