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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 E. DRAKE, 12 13 14 15 16 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., 17 Defendants. 18 19 20 Plaintiff has filed a “Motion for Nonsuit,” which the court construes as a notice of 21 voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 91. 22 23 24 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. 25 26 27 Fed. R. Civ. P. 41(a)(1)(A). Before plaintiff filed the notice of voluntary dismissal, defendants 28 filed an answer. ECF No. 65. Therefore, this action cannot be dismissed pursuant to Rule 1 1 41(a)(1)(A)(i). However, defendants may choose to stipulate to dismissal without prejudice 2 pursuant to Rule 41(a)(1)(A)(ii). Should defendants decline to stipulate as such, the court may 3 dismiss this action based upon plaintiff’s request, “on terms that the court considers proper.” Fed. 4 R. Civ. P. 41(a)(2). 5 Accordingly, it is ORDERED that no later than June 28, 2017, defendants shall file and 6 serve a document stipulating to dismissal of this action without prejudice pursuant to Rule 7 41(a)(1)(A)(ii),1 or otherwise respond to plaintiff’s motion. 8 DATED: June 21, 2017. 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 stipulation of dismissal for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). 2

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