Brooke v. HI Fresno Hotel Holdings, LLC

Filing 8

ORDER DISREGARDING 7 Notice of Voluntary Dismissal; Fourteen Day Deadline signed by Magistrate Judge Stanley A. Boone on 4/30/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THERESA BROOKE,
Plaintiff,

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Case No. 1:18-cv-00156-AWI-SAB
ORDER DISREGARDING NOTICE OF
VOLUNTARY DISMISSAL

v.
(ECF No. 7)

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HI FRESNO HOTEL HOLDINGS, LLC,

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Defendant.

FOURTEEN DAY DEADLINE
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Plaintiff Theresa Brooke filed this action against Defendant Hi Fresno Hotel Holdings,

18 LLC on January 27, 2018. (ECF No. 1.) On March 6, 2018, Defendant filed an answer to the
19 complaint. (ECF No. 4.) On April 11, 2018, Plaintiff filed a notice of voluntary dismissal
20 dismissing the action with prejudice with each party to bear its own costs and attorney fees.
21 (ECF No. 7.)
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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).
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Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an

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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

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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

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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). The Court notes that Plaintiff recently filed a similarly defective dismissal and was
12 advised of these requirements. See Brooke v. Prime Hospitality Services, LLC, No. 1:17-cv13 01582-AWI-SAB (E.D. Cal. Feb. 13, 2018).
Accordingly, Plaintiff’s notice of voluntary dismissal is HEREBY DISREGARDED.

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15 Plaintiff shall file a request for dismissal that complies with Rule 41 within fourteen (14) days
16 from the date of entry of this order.
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IT IS SO ORDERED.

19 Dated:

April 30, 2018
UNITED STATES MAGISTRATE JUDGE

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