Lance et al v. Commerce Trust Company, et al

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 5/26/2015 DISMISSING this action without prejudice pursuant to FRCP 41(a)(1)(A)(i). All dates and deadlines VACATED. CASE CLOSED. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANNA LANCE & DON LANCE,

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No. 2:15-cv-0341-GEB-KJN PS

Plaintiffs,
v.

ORDER

COMMERCE TRUST COMPANY, et al.,

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Defendants.

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On May 7, 2015, the court issued an order and order to show cause requiring plaintiffs,

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within 21 days, to (a) pay to the Clerk of Court $150.00 in monetary sanctions, (b) show cause in

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writing why the action should not be dismissed with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b) based on plaintiffs’ failure to comply with a court order and failure to prosecute

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their case, and (c) file a first amended complaint that complies with the court’s April 3, 2015

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order. (ECF No. 15.) However, that order also noted that “if plaintiffs conclude that they no

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longer wish to pursue the action in federal court at this time, they may instead file a notice of

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voluntary dismissal of the action without prejudice in lieu of paying the sanctions, responding to

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the order to show cause, and filing a first amended complaint, as outlined above.” (Id.)

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Thereafter, on May 8, 2015, plaintiffs filed what was captioned as a “First Amended
Complaint.” (ECF No. 16.) However, that filing does not comply with the requirements outlined
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in the court’s April 3, 2015 order granting leave to file a first amended complaint. Indeed, it

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appears that the May 8, 2015 filing is not an amended complaint at all, but instead a request for an

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extension of time to seek an environmental attorney. (Id.)

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Furthermore, on May 21, 2015, the court received a check in the amount of $300.00 from

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plaintiffs. (ECF No. 17.) It appears that plaintiffs incorrectly understood the court to have

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imposed sanctions of $150.00 on each plaintiff, for a total of $300.00, as opposed to a total of

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$150.00 for both plaintiffs, as the court intended. Because plaintiffs’ $300.00 check amounts to

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an overpayment, the court directed the Clerk of Court to return that check to plaintiffs. (Id.)

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Finally, on May 21, 2015, plaintiffs filed a request for dismissal of the action without

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prejudice, indicating that they need additional time to obtain an environmental lawyer and that

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plaintiff Anna Lance currently suffers from a painful bout of shingles. (ECF No. 18.)
Federal Rule of Civil Procedure 41(a)(1)(A) provides that “the plaintiff may dismiss an

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action without a court order by filing . . . (i) a notice of dismissal before the opposing party serves

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either an answer or a motion for summary judgment . . . .” “Under Rule 41(a)(1), a plaintiff has

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an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer

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or a motion for summary judgment. Even if the defendant has filed a motion to dismiss, the

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plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1).

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The dismissal is effective on filing and no court order is required...Unless otherwise stated, the

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dismissal is ordinarily without prejudice to the plaintiff’s right to commence another action for

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the same cause against the same defendants.”1 Concha v. London, 62 F.3d 1493, 1506 (9th Cir.

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1995); see also United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA,

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545 F.3d 1134, 1145 (9th Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no

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action on the part of the court and divests the court of jurisdiction once the notice of voluntary

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dismissal is filed).

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Because defendants have not yet served an answer or motion for summary judgment in
this case, plaintiffs’ request for dismissal is effective without a court order. In light of that
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Although dismissal is without prejudice, the court makes no determination regarding the
potential effect of any statute of limitations that may continue to run regarding plaintiffs’ claims.
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dismissal, the court also finds it unnecessary to require plaintiffs to pay any further sanctions or

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comply with the other terms of the May 7, 2015 order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. In light of the request for dismissal (ECF No. 18), this action is DISMISSED

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WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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2. All scheduled dates and deadlines in this action are vacated.

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3. The Clerk of Court is directed to close this case.

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IT IS SO ORDERED.

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Dated: May 26, 2015

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