Hernandez v. Doe Officer One, et al.

Filing 34

ORDER for Parties to Advise Whether They Stipulate to Dismissal of This Action Per Federal Rule of Civil Procedure 41 signed by Magistrate Judge Jennifer L. Thurston on 6/18/2018. Response due within ten (10) days. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

RUFUS HERNANDEZ,
Plaintiff,

13

(Doc. 33)

v.

14

ORDER FOR PARTIES TO ADVISE
WHETHER THEY STIPULATE TO
DISMISSAL OF THIS ACTION PER
FEDERAL RULE OF CIVIL
PROCEDURE 41

Defendants.

12

MARTIN, et al.,

15

1:17-cv-00429-JLT (PC)

16
17
18
19
20
21
22
23
24
25
26
27

On June 14, 2018, Plaintiff filed a notice of his desire to voluntarily dismiss this action.
(Doc. 33.) The Court construes Plaintiff’s notice as an attempt to voluntarily dismiss this action
pursuant to Federal Rule of Civil Procedure 41 (“Rule 41”).
Rule 41(a)(1)(A) allows a Plaintiff to “dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for
summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.”
Subsection (B) of Rule 41 provides that, “[u]nless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court
action based on or including the same claim, a notice of dismissal operates as an adjudication on
the merits.” Subsection (2) of Rule 41 provides in pertinent part that, “[e]xcept as provided in
Rule 41(a)(1), an action may be dismissed at the plaintiff=s request only by court order, on terms

28
1

1

that the court considers proper. . . .” Defendants have answered and their motion for summary

2

judgment is currently pending. Thus, at this stage in the litigation, Plaintiff may not simply

3

dismiss the action of his own accord. Accordingly, the Court ORDERS:

4

1. Defendants shall file a statement within 10 days noting any objections to the

5

dismissal of the action;

6
7
8

IT IS SO ORDERED.
Dated:

June 18, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2