Gibson v. Hawkins et al

Filing 43

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/25/2011 re 42 MOTION to DISMISS filed by Terry Gibson ORDERING that w/i 14 days of the date of this order, defendants may file and serve a document consenting to dismissal of this action witho ut prejudice pursuant to Rule 41(a)(1)(A)(ii); should the defendants file their consent, the court will construe the consent and 42 Notice of Voluntary Dismissal together as a stipulation for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).(Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRY GIBSON,
Plaintiff,

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vs.

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No. CIV S-10-2404 EFB P

HAWKINS, et al.,
Defendants.

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/

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ORDER

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

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U.S.C. § 1983. Currently pending is a document filed on July 19, 2011, in which plaintiff

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requests that this action be dismissed. As explained below, the court construes this as a notice of

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voluntary dismissal and provides the opportunity for defendants to stipulate to dismissal without

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prejudice.

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The Federal Rules of Civil Procedure govern voluntary dismissal. See Fed. R. Civ. P.

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41(a). Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action

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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)

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

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Fed. R. Civ. P. 41(a)(1)(A).
On January 21, 2011, the defendants filed an answer to the complaint. Thereafter, the

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court issued a discovery and scheduling order. On July 19, 2011, plaintiff filed a notice of

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voluntary dismissal. However, since defendants have answered, plaintiff cannot voluntarily

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dismiss it without the defendants’ consent. Thus, the defendants must have an opportunity to

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consent to the dismissal.

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Accordingly, it is ORDERED that within 14 days of the date of this order, defendants

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may file and serve a document consenting to dismissal of this action without prejudice pursuant

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to Rule 41(a)(1)(A)(ii). Should defendants file their consent, the court will construe the consent

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and the instant filing together as a stipulation for voluntary dismissal without prejudice pursuant

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to Rule 41(a)(1)(A)(ii).

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DATED: July 25, 2011.

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