Cato v. Darst et al

Filing 63

ORDER signed by Magistrate Judge Jeremy D. Peterson on 12/01/20 ORDERING that defendants shall, within 14 days of the date of this order, 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 plaintiffs requests for voluntary dismissal.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES CATO,

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No. 2:17-cv-01873-TLN-JDP (PC)
Plaintiff,

v.
M. DURST, et al.,

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ORDER DIRECTING DEFENDANTS TO
FILE A RESPONSE TO PLAINTIFF’S
REQUESTS FOR VOLUNTARY DISMISSAL
ECF Nos. 61, 62

Defendants.

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Plaintiff has filed two requests to voluntarily dismiss this action. ECF Nos. 61, 62.

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Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action without a

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court order by filing:

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(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 his request for voluntary dismissal, defendants filed an answer to the

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first amended complaint, ECF No. 30, and a motion for summary judgment, ECF No. 37.

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Consequently, plaintiff may not unilaterally dismiss this case pursuant to Rule 41(a)(1)(A)(i).

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However, defendants may stipulate to dismissal of this action pursuant to Rule 41(a)(1)(A)(ii).
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Even if 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, within fourteen days of the date of

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this order, file and serve a document stipulating to dismissal of this action without prejudice

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pursuant to Rule 41(a)(1)(A)(ii),1 or otherwise respond to plaintiff’s requests for voluntary

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dismissal.

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IT IS SO ORDERED.

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Dated:

December 1, 2020

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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In the event defendants so stipulate, the court will construe the parties’ filings as a
stipulation of voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).
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