Avalos v. Wa Re, Inc., et al.

Filing 11

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GEORGE AVALOS, an individual,

12
13
14
15
16
17

Plaintiff,

Case No. 1:20-cv-01572-NONE-BAM
ORDER REGARDING PLAINTIFFS’
NOTICE OF VOLUNTARY DISMISSAL

v.
(Doc. No. 10.)
WA RE, INC., a California corporation;
TROY A. MCKENNEY, an individual;
DEBRA A. MCKENNEY, an individual;
and DOES 1-10, inclusive,
Defendants.

18
19

Plaintiff George Avalos initiated this civil action on November 6, 2020. (Doc. No. 1.)

20

Defendants Troy A. McKenney and Debra A. McKenney filed an answer on November 30, 2020.

21

(Doc. No. 8.) Defendant Wa Re, Inc. has not filed an answer.

22

On December 31, 2020, Plaintiff filed a notice requesting voluntary dismissal of this

23

action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. No. 10.) “[U]nder Rule

24

41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the

25

defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc.

26

v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). In this

27

case, Defendant Wa Re, Inc., has not served an answer or a motion for summary judgment.

28

Therefore, Defendant Wa Re, Inc., is terminated from this action under Rule 41(a)(1)(i).
1

1

However, Defendants Troy A. McKenney and Debra A. McKenny have filed and served an

2

answer. (Doc. No. 8.) Before Plaintiff can dismiss this action in its entirety, Defendants who

3

have filed an answer must consent in writing to the dismissal, either by joint stipulation or filing a

4

consent to dismissal.

5

Accordingly, IT IS HEREBY ORDERED as follows:

6

(1) Within seven (7) days from the date of this order, Defendants Troy A. McKenney and

7

Debra A. McKenney may respond in writing to Plaintiffs’ notice of voluntary

8

dismissal and indicate whether they consent to the dismissal of this action or whether

9

they have any reason to oppose the dismissal. Alternatively, the parties appearing in

10
11

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

12

this action by operation of law without further order from the Court.

13
14
15
16

IT IS SO ORDERED.
Dated:

/s/ Barbara

January 5, 2021

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
2