Hidalgo et al v. CL Medical Inc. et al

Filing 54

ORDER REJECTING NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE re 53 Notice of Voluntary Dismissal filed by Fernando Hidalgo. Signed by Judge William H. Orrick on 12/10/2013. (jmdS, COURT STAFF) (Filed on 12/10/2013)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SHEILA HIDALGO, et al.,

Case No. 12-cv-05664-WHO

Plaintiffs,
8
v.
9
10

CL MEDICAL INC.,
Defendant.

ORDER REJECTING NOTICE OF
VOLUNTARY DISMISSAL WITHOUT
PREJUDICE
Re: Dkt. No. 53

United States District Court
Northern District of California

11
12

Plaintiffs Sheila Hidalgo and Fernando Hidalgo have filed a notice pursuant to Federal

13

Rule of Civil Procedure 41(a)(1) purporting to voluntarily dismiss all claims without prejudice as

14

to Fernando Hidalgo. Plaintiffs misunderstand Rule 41(a)(1), which states that a notice of

15

dismissal is only effective “before the opposing party serves either an answer or a motion for

16

summary judgment.” The rule does not say that a defendant must both file an answer and a motion

17

for summary judgment to extinguish plaintiffs' right to voluntarily dismiss without prejudice.

18

Plaintiffs’ right to dismiss without prejudice under Rule 41(a)(1) terminated when defendant CL

19

Medical Inc. filed its Answer on November 13, 2012.

20
21
22
23
24
25
26
27
28

If they choose to do so, plaintiffs may file a motion to dismiss Fernando Hidalgo under
Rule 41(a)(2) or a joint stipulation and proposed order for the Court to review.
IT IS SO ORDERED.
Dated: December 10, 2013
______________________________________
WILLIAM H. ORRICK
United States District Judge