(PC) Hesse v. County of Sacramento et al

Filing 51

ORDER signed by Magistrate Judge Kendall J. Newman on 11/15/2023 DIRECTING Defendants notify this Court, within 7 days, whether they have any objection to the dismissal of Defendant Stephenye Burnett from this action.(Lopez, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL HESSE,

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No. 2:21-cv-1931 WBS KJN P

Plaintiff,
v.

ORDER

COUNTY OF SACRAMENTO, et al.,
Defendants.

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Plaintiff, a former county jail inmate proceeding through counsel, filed a notice of

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dismissal of defendant Stephenye Burnett pursuant to Rules 41(a) or (c) of the Federal Rules of

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Civil Procedure. (ECF No. 42.)

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Rule 41(a)(1)(A) provides:
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2,
and 66 and any applicable federal statute, the plaintiff may 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.
Fed. R. Civ. P. 41(a)(1)(A). Rule 41(c) provides:
(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim.
This rule applies to a dismissal of any counterclaim, crossclaim, or
third-party claim. A claimant's voluntary dismissal under Rule
41(a)(1)(A)(i) must be made:
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(1) before a responsive pleading is served; or

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(2) if there is no responsive pleading, before evidence is introduced
at a hearing or trial.

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Id.
Defendant Burnett filed an answer on September 20, 2022. (ECF No. 27.) Therefore,

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absent a stipulation by all the parties, plaintiff’s notice is ineffective under Rule 41(a)(1)(A) or

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41(c).

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Accordingly, IT IS HEREBY ORDERED that all defendants notify this court, within

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seven days, whether they have any objection to the dismissal of defendant Stephenye Burnett

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from this action. Should defendants fail to respond, plaintiff’s request will be granted pursuant to

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

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Dated: November 15, 2023

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/hess1931.59a

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