Bun v. Felker et al

Filing 138

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/11/14 ORDERING that no later than Wednesday, September 17, 2014, defendants shall file and serve a document stipulating to dismissal of this action without prejudice pursuant to Rule 41(a)(1)(A)(ii),1 or otherwise respond to plaintiffs motion to dismiss. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHANTHON BUN,

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No. 2:09-cv-631-EFB P

Plaintiff,
v.

ORDER

PERRY, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983, against defendants Perry, Hook, Lower, Handshumacker, Ramsey, Sanchez,

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Essman, Kirkland, Kissinger, Garate, and Aurich. He has filed a notice of voluntary dismissal

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pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 137.

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Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action
without prejudice, and without a court order, by filing:
(i)

a notice of dismissal before the opposing party serves either an answer or a motion
for summary judgment; or

(ii)

a stipulation of dismissal signed by all parties who have appeared.

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Fed. R. Civ. P. 41(a)(1)(A). Before plaintiff filed the notice of voluntary dismissal, defendants

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filed an answer. ECF No. 51. Therefore, this action cannot be dismissed pursuant to Rule

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41(a)(1)(A)(i). However, defendants may choose to stipulate to dismissal without prejudice
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pursuant to Rule 41(a)(1)(A)(ii). Should defendants decline to stipulate as such, the court may

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dismiss this action based upon plaintiff’s request, “on terms that the court considers proper.” Fed.

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R. Civ. P. 41(a)(2).

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Accordingly, it is ORDERED that no later than Wednesday, September 17, 2014,

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defendants shall file and serve a document stipulating to dismissal of this action without prejudice

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pursuant to Rule 41(a)(1)(A)(ii),1 or otherwise respond to plaintiff’s motion to dismiss.

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DATED: September 11, 2014.

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In the event defendants so stipulate, the court will construe the parties’ filings as
stipulation of dismissal for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).
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