Brooke v. Prime Hospitality Services, LLC

Filing 6

ORDER DISREGARDING 5 Notice of Voluntary Dismissal, signed by Magistrate Judge Stanley A. Boone on 02/14/2018. (14-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THERESA BROOKE, Plaintiff, 12 13 Case No. 1:17-cv-01582-AWI-SAB ORDER DISREGARDING NOTICE OF VOLUNTARY DISMISSAL v. (ECF No. 5) 14 PRIME HOSPITALITY SERVICES LLC, FOURTEEN DAY DEADLINE 15 Defendant. 16 17 Plaintiff Theresa Brooke filed this action against Defendant Prime Hospitality Services, 18 LLC on November 28, 2017. (ECF No. 1.) On January 5, 2018, Defendant filed an answer to 19 the complaint. (ECF No. 4.) On February 13, 2018, Plaintiff filed a notice of voluntary 20 dismissal dismissing the action with prejudice with each party to bear its own costs and attorney 21 fees. (ECF No. 5.) 22 Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an 23 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 24 motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 25 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 26 1997)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action 27 pursuant to Rule 41(a)(1)(A)(i). 28 Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an 1 1 action without a court order by filing a stipulation of dismissal signed by all parties who have 2 appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). A party may also dismiss an action by filing a motion requesting the Court to dismiss the 3 4 action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is 5 addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. 6 Inc., 679 F.2d 143, 145 (9th Cir. 1982). Plaintiff’s notice of voluntary dismissal is defective under Rule 41(a) because it is not a 7 8 signed stipulation by all parties who have appeared and it is not a motion under Rule 41(a)(2). If 9 Plaintiff wishes to dismiss this action, she is required to comply with the procedures set forth in 10 Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)(ii) or a motion under Rule 11 41(a)(2). Accordingly, Plaintiff’s notice of voluntary dismissal is HEREBY DISREGARDED. 12 13 Plaintiff shall file a request for dismissal that complies with Rule 41 within fourteen (14) days 14 from the date of entry of this order. 15 16 IT IS SO ORDERED. 17 Dated: February 14, 2018 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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