Gibbs v. Bradford et al

Filing 33

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/29/19 ORDERING that defendants shall have 7 days to file and serve a stipulation of dismissal of this action pursuant to FRCP 41(a)(1)(A)(ii) or to otherwise respond to plaintiff's motion to dismiss. (Plummer, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

KENNETH B. GIBBS,

11

Plaintiff,

12
13

No. 2:16-cv-0544-MCE-EFB P

v.

ORDER

J.R. BRADFORD, et al.,

14

Defendants.

15
16
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

17
18

U.S.C. § 1983, against defendants Advincula, Bradford, Cross, and Waddle. He has filed a notice

19

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

20

32.

21
22
23

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.

24
25
26

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

27

filed an answer. ECF No. 27. Therefore, this action cannot be dismissed pursuant to Rule

28

41(a)(1)(A)(i). However, defendants may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii).
1

1

Should defendants decline to stipulate, the court may dismiss this action based upon plaintiff’s

2

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

3

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

4

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

5

respond to plaintiff’s motion to dismiss.

6

DATED: October 29, 2019.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

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).
2