Rhodes v. City Of Fresno, et al.

Filing 28

ORDER DENYING Plaintiff's 27 Motion to Reopen the Case signed by Magistrate Judge Sheila K. Oberto on 8/7/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERCY LEE RHODES,

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Plaintiff,

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v.

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CITY OF FRESNO, et al.,

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Defendants.

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Case No. 1:18-cv-00013-SKO
ORDER DENYING PLAINTIFF’S MOTION TO
REOPEN THE CASE
(Doc. 27)

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Plaintiff Percy Lee Rhodes, proceeding pro se, filed this civil rights action pursuant to 42

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U.S.C. § 1983 in Fresno County Superior Court on October 5, 2016. (Doc. 1 at 5–43.) Defendants

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removed the case to this Court on December 29, 2017. (Doc. 1.)

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On September 4, 2018, Plaintiff filed a “Stipulation of Dismissal Without Prejudice as to the

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Defendants by Percy Lee Rhodes” (the “Stipulation”) seeking to dismiss this case without prejudice

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pursuant to Federal Rule of Civil Procedure (“Rule”) 41(a)(1)(A)(ii). (Doc. 23.) Although the

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Stipulation stated Defendants “agree and stipulate” to dismiss the case, the Stipulation was only signed

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by Plaintiff and not signed by “all parties who have appeared” in the case as required by Rule

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41(a)(1)(A)(ii). (See id.)

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On September 5, 2018, the Court entered an order directing Defendants to file a response to the
Stipulation. (Doc. 24.) On September 7, 2018, Defendants filed a “Fully Executed Stipulated
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Dismissal” agreeing to Plaintiff’s request for dismissal of this case without prejudice, which was

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signed by all parties who have appeared in the case. (Doc. 25.) In light of the parties’ fully-executed

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stipulation of dismissal, the Court closed the case on September 10, 2018. (Doc. 26.)
On August 6, 2019, Plaintiff filed a “Motion/Order to Reopen Case Under Civil P Rule 60 (B)”

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but did not state the reason he is seeking to reopen the case. (Doc. 27.) Plaintiff does state, however,

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that “[n]o prejudice will be suffered by defendants if case is reopened.” (Id. at 1.)
A stipulated dismissal under Rule 41 requires no action on the part of the court and divests the

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court of jurisdiction upon the filing of the stipulation. Commercial Space Management Co., Inc. v.

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Boeing Co., Inc., 193 F.3d 1074, 1076 (9th Cir. 1999) (“a Rule 41(a)(1) dismissal, once filed,

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automatically terminates the action, and thus federal jurisdiction, without judicial involvement.”).

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Therefore, when the stipulation of dismissal signed by all parties who had appeared was filed pursuant

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to Rule 41(a)(1)(A)(ii) on September 7, 2018, the case was terminated and this Court was divested of

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jurisdiction over Plaintiff’s case. As the stipulation of dismissal in this case provided Plaintiff’s

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complaint was dismissed without prejudice, he is free to file a new complaint. However, Plaintiff’s

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motion to reopen this case, (Doc. 27), is DENIED for lack of jurisdiction.
The Court DIRECTS the Clerk to send a copy of this Order to Plaintiff at his address listed on

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the docket for this matter.

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IT IS SO ORDERED.
Dated:

August 7, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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