Cornish v. Attorney General of the State of California

Filing 21

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/3/14 ORDERING that within 14 days of the date of this order, respondent shall file and serve a document stipulating to dismissal of this action without prejudice, or otherwise respond to petitioners 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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JESSE CORNISH,

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Petitioner,
v.

ORDER

ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondent.

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No. 2:12-cv-2460-MCE-EFB P

Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He has filed a notice of voluntary dismissal pursuant to Rule 41(a)

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of the Federal Rules of Civil Procedure. ECF No. 20; see also Rule 12, Rules Governing Section

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2254 Cases (to the extent they are not inconsistent with any statutory provisions or the Rules

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Governing Section 2254 Cases, Federal Rules of Civil Procedure may be applied to habeas

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proceedings).

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Subject to exceptions not applicable here, a petitioner 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 petitioner filed the notice of voluntary dismissal, respondent

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filed an answer to the petition. ECF No. 13. Therefore, this action cannot be dismissed pursuant

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to Rule 41(a)(1)(A)(i). However, respondent may choose to stipulate to dismissal without

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prejudice pursuant to Rule 41(a)(1)(A)(ii). Should respondent decline to stipulate as such, the

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court may dismiss this action based upon petitioner’s request, “on terms that the court considers

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proper.” Fed. R. Civ. P. 41(a)(2). The court may also deny petitioner’s request for dismissal

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pursuant to Rule 41(a), and submit the pending findings and recommendations (ECF No. 19),

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which recommend denial of the petition on the merits, to the district judge.

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

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

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

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DATED: June 3, 2014.

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In the event respondent so stipulates, 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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