Avalos v. Wa Re, Inc., et al.
ORDER Regarding Plaintiffs' Notice of Voluntary Dismissal and Terminating Defendant Wa Re, Inc. signed by Magistrate Judge Barbara A. McAuliffe on 1/5/2021. Defendants' Response to Notice of Voluntary Dismissal due within seven (7) days. (Jessen, A)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GEORGE AVALOS, an individual,
Case No. 1:20-cv-01572-NONE-BAM
ORDER REGARDING PLAINTIFFS’
NOTICE OF VOLUNTARY DISMISSAL
(Doc. No. 10.)
WA RE, INC., a California corporation;
TROY A. MCKENNEY, an individual;
DEBRA A. MCKENNEY, an individual;
and DOES 1-10, inclusive,
Plaintiff George Avalos initiated this civil action on November 6, 2020. (Doc. No. 1.)
Defendants Troy A. McKenney and Debra A. McKenney filed an answer on November 30, 2020.
(Doc. No. 8.) Defendant Wa Re, Inc. has not filed an answer.
On December 31, 2020, Plaintiff filed a notice requesting voluntary dismissal of this
action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. No. 10.) “[U]nder Rule
41(a)(1)(i), 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.” Commercial Space Mgmt. Co., Inc.
v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). In this
case, Defendant Wa Re, Inc., has not served an answer or a motion for summary judgment.
Therefore, Defendant Wa Re, Inc., is terminated from this action under Rule 41(a)(1)(i).
However, Defendants Troy A. McKenney and Debra A. McKenny have filed and served an
answer. (Doc. No. 8.) Before Plaintiff can dismiss this action in its entirety, Defendants who
have filed an answer must consent in writing to the dismissal, either by joint stipulation or filing a
consent to dismissal.
Accordingly, IT IS HEREBY ORDERED as follows:
(1) Within seven (7) days from the date of this order, Defendants Troy A. McKenney and
Debra A. McKenney may respond in writing to Plaintiffs’ notice of voluntary
dismissal and indicate whether they consent to the dismissal of this action or whether
they have any reason to oppose the dismissal. Alternatively, the parties appearing in
this action may file a stipulation of dismissal pursuant to Rule 41(a)(1)(A)(ii); and
(2) Based on Plaintiff’s voluntary dismissal, Defendant Wa Re, Inc., is terminated from
this action by operation of law without further order from the Court.
IT IS SO ORDERED.
January 5, 2021
UNITED STATES MAGISTRATE JUDGE
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