Drake v. Niello Company et al

Filing 92

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/21/2017 ORDERING that no later than 6/28/2017, defendants shall file and serve a document stipulating to dismissal of this action without prejudice pursuant to Rule 41(a)(1)(A)(ii), or otherwise respond to plaintiff's 91 motion. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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E. DRAKE,

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No. 2:17-cv-1036-JAM-EFB PS
Plaintiff,

v.

ORDER

THE NIELLO COMPANY, NIELLO
IMPORTS OF ROCKLIN, INC., NIELLO
PERFORMANCE MOTORS INC.,
NIELLO MOTOR CAR COMPANY,
AND SHIPPING EXPERTS INC.,

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Defendants.

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Plaintiff has filed a “Motion for Nonsuit,” which the court construes as a notice of

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voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 91.

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Subject to exceptions not applicable here, a plaintiff 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 plaintiff filed the notice of voluntary dismissal, defendants

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filed an answer. ECF No. 65. Therefore, this action cannot be dismissed pursuant to Rule
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41(a)(1)(A)(i). However, defendants may choose to stipulate to dismissal without prejudice

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pursuant to Rule 41(a)(1)(A)(ii). Should defendants decline to stipulate as such, the court may

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dismiss this action based upon plaintiff’s request, “on terms that the court considers proper.” Fed.

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R. Civ. P. 41(a)(2).

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Accordingly, it is ORDERED that no later than June 28, 2017, defendants shall file and

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serve a document stipulating to dismissal of this action without prejudice pursuant to Rule

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

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DATED: June 21, 2017.

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In the event defendants so stipulate, 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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