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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division ALICE MONROE, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 12-03840 LB Plaintiff, v. ORDER RE: PLAINTIFF’S NOTICE OF DISMISSAL 13 ORCHARD SUPPLY HARDWARE, et al., 14 15 Defendant. _____________________________________/ 16 Plaintiff Alice Monroe filed this action in state court on February 10, 2012 and Defendants 17 Orchard Supply Hardware and Bruce Williams removed to this court on July 23, 2012. Thus, the 18 120-day time period to effect service under Federal Rule of Civil Procedure 4(m) has expired. 19 Monroe has not filed proof of service upon Defendant Jeff Caminata. See Docket. 20 On November 30, 2012, the court ordered Monroe to show cause why her claims against 21 Caminata should not be dismissed for failure to prosecute. See Order to Show Cause, ECF No. 15. 22 The next day, Monroe filed a “Request for Dismissal Without Prejudice as to Named Individual 23 Defendant Jeff Caminata in Response to OSC.” ECF No. 16. Monroe acknowledges that she has 24 not served Caminata and asks the court to dismiss her claims against him without prejudice. 25 Under Federal Rule of Civil Procedure 41(a)(1)(A), subject to certain inapplicable restrictions, 26 “the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before 27 the opposing party serves either an answer or a motion for summary judgment . . . .” Under Rule 28 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) 1 defendant suit. See Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993) (“We agree with the First, 2 Third, Fifth, and Eighth circuits that Rule 41(a)(1) allows a plaintiff to dismiss without a court order 3 any defendant who has yet to serve an answer or a motion for summary judgment.”). 4 The court construes Monroe’s request for dismissal as a notice of voluntary dismissal under Rule 5 41(a)(1)(A)(i). Alternatively, the court can dismiss under Rule 4(m) without prejudice. 6 Accordingly, Monroe’s claims against Jeff Caminata are dismissed without prejudice. The clerk of 7 the court shall terminate Caminata as a Defendant in this case. 8 9 IT IS SO ORDERED. Dated: December 3, 2012 _______________________________ LAUREL BEELER United States Magistrate Judge 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 12-03840 LB (ORDER) 2

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