Adams v. Vivo, Inc. et al

Filing 80

ORDER to Submit Additional Information re 78 MOTION to Dismiss Voluntary Dismissal Without Prejudice, Rule 41 filed by Mark Adams Signed by Magistrate Judge Donna M. Ryu on 12/18/2012. (dmrlc1, COURT STAFF) (Filed on 12/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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MARK LETELL ADAMS,

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Plaintiff,

No. C 12-01854 DMR
ORDER TO SUBMIT ADDITIONAL
INFORMATION

v.

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VIVO INC., et al.,

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Defendants.
___________________________________/

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The court is in receipt of pro se Plaintiff Mark Adams’ Motion for Voluntary Dismissal, in

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which he appears to request the dismissal without prejudice of his three remaining claims for

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disparate treatment race discrimination, hostile work environment/harassment, and retaliation in

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accordance with Federal Rule of Civil Procedure 41. (Pl.’s Mot. 3-4.)

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Pursuant to Federal Rule of Civil Procedure 41(a), “a plaintiff may dismiss an action without

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a court order by filing [] a notice of dismissal before the opposing party serves either an answer or a

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motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i); see Amer. Soccer Co., Inc. v. Score

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First Enters., 187 F.3d 1108, 1110 (9th Cir. 1999) (“The dismissal is effective on filing and no court

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order is required.”). “The filing of a notice of voluntary dismissal with the court automatically

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terminates the action as to the defendants who are the subjects of the notice,” and “[s]uch a

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dismissal leaves the parties as though no action had been brought.” Id. (emphasis added). Here, it

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is unclear whether Plaintiff intended his motion to serve as a notice of dismissal pursuant to Rule

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41(a)(1)(A)(i), which would automatically terminate this action, because he also requested “that all

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other proceedings before this Court remain open pending appeal of all issues presented” to the Ninth

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Circuit. (Pl.’s Mot. 4.) Accordingly, by no later than December 21, 2012, Plaintiff shall submit a

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statement clarifying whether he seeks to voluntarily dismiss his remaining claims pursuant to Rule

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41(a)(1)(A)(i). If Plaintiff does seek to voluntarily dismiss his claims, the effect of his filing will be

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voluntary dismissal of the three remaining claims and closure of the case without a court order.

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Plaintiff’s request for an extension of time to file a second amended complaint (Docket No. 79) is

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hereby held in abeyance pending the December 21, 2012 filing.

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S

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DONNA M. RYU na M. Ryu
on
United StateseMagistrate Judge
Judg D

ER

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R NIA

Dated: December 18, 2012

DERED

O OR
IT IS S

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UNIT
ED

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RT

For the Northern District of California

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NO

United States District Court

IT IS SO ORDERED.

RT
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