Perez v. Beard et al

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/28/2018 ORDERING defendants shall have seven days to file and serve a stipulation to the dismissal of this action pursuant to Rule 41(a)(1)(A)(ii), or to otherwise respond to plaintiff's 19 motion to dismiss. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR RICHARD PEREZ,

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No. 2:16-cv-0073-JAM-EFB P

Plaintiff,
v.

ORDER

JEFFREY BEARD, 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 Herrera and Ponce. He has filed a notice of voluntary

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dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 19.

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Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action
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. 15. Therefore, this action cannot be dismissed pursuant to Rule

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41(a)(1)(A)(i). However, defendants may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii).
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Should defendants decline to stipulate, the court may dismiss this action based upon plaintiff’s

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request, “on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).

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Accordingly, it is ORDERED that defendants shall have seven days to file and serve a

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stipulation to the dismissal of this action pursuant to Rule 41(a)(1)(A)(ii),1 or to otherwise

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respond to plaintiff’s motion to dismiss.

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DATED: February 28, 2018.

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In the event defendants so stipulate, the court will construe the parties’ filings as a
stipulation for voluntary dismissal pursuant to Rule 41(a)(1)(A)(ii).
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