Monroe v. Orchard Hardware Supply et al

Filing 17

ORDER Dismissing Claims Against Defendant Jeff Caminata Without Prejudice (lblc1, COURT STAFF) (Filed on 12/3/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
ALICE MONROE,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 12-03840 LB
Plaintiff,

v.

ORDER RE: PLAINTIFF’S NOTICE
OF DISMISSAL

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ORCHARD SUPPLY HARDWARE, et al.,
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Defendant.
_____________________________________/

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Plaintiff Alice Monroe filed this action in state court on February 10, 2012 and Defendants

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Orchard Supply Hardware and Bruce Williams removed to this court on July 23, 2012. Thus, the

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120-day time period to effect service under Federal Rule of Civil Procedure 4(m) has expired.

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Monroe has not filed proof of service upon Defendant Jeff Caminata. See Docket.

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On November 30, 2012, the court ordered Monroe to show cause why her claims against

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Caminata should not be dismissed for failure to prosecute. See Order to Show Cause, ECF No. 15.

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The next day, Monroe filed a “Request for Dismissal Without Prejudice as to Named Individual

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Defendant Jeff Caminata in Response to OSC.” ECF No. 16. Monroe acknowledges that she has

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not served Caminata and asks the court to dismiss her claims against him without prejudice.

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Under Federal Rule of Civil Procedure 41(a)(1)(A), subject to certain inapplicable restrictions,

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“the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before

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the opposing party serves either an answer or a motion for summary judgment . . . .” Under Rule

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41(a)(1)(A)(i), a party may unilaterally dismiss all of its claims against one defendant in a multi-

C 12-03840 LB (ORDER)

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defendant suit. See Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993) (“We agree with the First,

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Third, Fifth, and Eighth circuits that Rule 41(a)(1) allows a plaintiff to dismiss without a court order

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any defendant who has yet to serve an answer or a motion for summary judgment.”).

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The court construes Monroe’s request for dismissal as a notice of voluntary dismissal under Rule

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41(a)(1)(A)(i). Alternatively, the court can dismiss under Rule 4(m) without prejudice.

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Accordingly, Monroe’s claims against Jeff Caminata are dismissed without prejudice. The clerk of

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the court shall terminate Caminata as a Defendant in this case.

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IT IS SO ORDERED.
Dated: December 3, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 12-03840 LB (ORDER)

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