Williams v. Rego et al

Filing 11

ORDER for Plaintiff to Notify the Court Whether He Wishes to Voluntarily Dismiss this Case without Prejudice, signed by Magistrate Judge Gary S. Austin on 7/31/18. Thirty-Day Deadline. (Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL B. WILLIAMS,

12

Plaintiff,

13

vs.

14

Defendants.

ORDER FOR PLAINTIFF TO NOTIFY
THE COURT WHETHER HE WISHES TO
VOLUNTARILY DISMISS THIS CASE
WITHOUT PREJUDICE

BRENNA REGO, et al.,

15

1:17-cv-01273-GSA-PC

30-DAY DEADLINE

16
17
18
19
20
21
22

I.

BACKGROUND
Michael B. Williams (“Plaintiff”) is a civil detainee proceeding pro se and in forma

23

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

24

Complaint commencing this action on September 25, 2017. (ECF No. 1.) The court screened

25

the Complaint under 28 U.S.C. § 1915A and issued an order on July 18, 2018, dismissing the

26

Complaint for failure to state a claim, with leave to file an amended complaint within thirty

27

days. (ECF No. 9.)

28
1

Plaintiff filed the

1

On July 30, 2018, Plaintiff filed a request to voluntarily dismiss this case, without

2

prejudice and without giving up his appeal rights. (ECF No. 10.)

3

II.

4
5

RULE 41
Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules

of Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained:

6
7
8
9
10
11
12
13
14
15

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. 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, 609-10 (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.
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Here, no defendant has filed an

16

answer or motion for summary judgment in this case. Therefore, Plaintiff has an absolute right
17

to voluntarily dismiss this case under Rule 41 by filing a notice of dismissal.
18

Plaintiff seeks to voluntarily dismiss this case, without prejudice, and without giving up
19

his appeal rights. Plaintiff is advised that in most cases, if a plaintiff voluntarily dismisses his
20

case without prejudice, he gives up his appeal rights as explained in the paragraphs that follow.
21

For this reason, Plaintiff shall be required to notify the court within 30 days whether he wishes
22

to voluntarily dismiss this case without prejudice.
23
24
25

Voluntary Dismissal Without Prejudice
“A voluntary dismissal without prejudice is not averse to the plaintiff’s interests.”
Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995). “The plaintiff is free to seek an

26

adjudication of the same issue at another time in the same or another forum.” Id. However,
27

“[a] voluntary dismissal without prejudice is ordinarily not a final judgment from which the

28
2

1

plaintiff may appeal.” Storman v. Office of Sec'y, United States, DHHS, 727 F. App’x 454, 455

2

(9th Cir. 2018) (quoting Concha, 62 F.3d at 1506).

3

jurisdiction to review the dismissal if an action is voluntarily dismissed without prejudice.” Id.

4

(emphasis added); WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc)

5

(issue of jurisdiction must be raised sua sponte).

6
7

In fact, the court of appeals “lacks

Therefore, if Plaintiff voluntarily dismisses this case without prejudice, he will lose his
right to appeal the dismissal.

8

Voluntary Dismissal With Prejudice

9

On the other hand, “[a] voluntary dismissal with prejudice permits the appellate court to

10

review the action of the district court that the plaintiff believes to be determinative of his

11

claim—the action that caused him to dismiss his case.” Concha, 62 F.3d at 1507 (emphasis

12

added). “If the plaintiff prevails on appeal, and the determinative district court ruling is

13

reversed, then his claim is remanded to the district court for further proceedings.”

14

“However, if the plaintiff is unsuccessful in challenging the district court’s action, then the

15

dismissal operates as an adjudication on the merits and the litigation is terminated.” Id. “Thus,

16

a plaintiff who voluntarily dismisses his action with prejudice, and thereby secures review of an

17

order that would not ordinarily be reviewable until after a trial on the merits, runs a serious risk

18

of losing his claim entirely.” Id. at 1507-08. “Should the appellate court reject his appeal, the

19

dismissal of his action with prejudice stands.” Id. at 1508. “The plaintiff is precluded from

20

bringing another action for the same cause, thus forfeiting any possibility of ever obtaining a

21

favorable determination on the merits.” Id.

22

III.

Id.

CONCLUSION AND ORDER

23

The court finds that Plaintiff has an absolute right to voluntarily dismiss this case under

24

Rule 41 by filing a notice of dismissal. However, if Plaintiff voluntarily dismisses this case

25

without prejudice, he shall lose his right to appeal the dismissal. Plaintiff is therefore required

26

to notify the court, in writing, within 30 days whether he wishes to voluntarily dismiss this case

27

without prejudice, losing his right to appeal the dismissal.

28

Accordingly, IT IS HEREBY ORDERED that:
3

1

1.

Within 30 days of the date of service of this order, Plaintiff is required to notify

2

the court in writing whether he wishes to voluntarily dismiss this case without prejudice and

3

lose his right to appeal the judgment; and

4
5

2.

Plaintiff’s failure to comply with this order shall result in a recommendation that

this case be dismissed for failure to comply with the court’s order.

6
7
8
9

IT IS SO ORDERED.
Dated:

July 31, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4