Copper Hill, Inc v. Cabral

Filing 10

ORDER DENYING 8 DEFENDANTS REQUEST FOR DISMISSAL; SETTING DEADLINE FOR FURTHER ACTION. Accordingly, Copper Hill shall file a request for dismissal or the parties shall submit a stipulation for dismissal on or before September 26, 2011, if this case is to be dismissed. If such a request or stipulation is not filed by the date ordered, the court will thereafter summarily remand this unlawful detainer case to the Superior Court of California, County of Santa Clara, pursuant to 28 U.S.C. § 1 446(c)(4), as no basis for federal jurisdiction exists upon a review of the Notice of Removal and its attached documents. Signed by Judge Edward J. Davila on 9/14/2011. (ejdlc1, COURT STAFF) (Filed on 9/14/2011) (Additional attachment(s) added on 9/14/2011: # 1 Certificate of Service) (ecg, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
NO. 5:11-cv-03714 EJD

COPPER HILL, INC.,

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ORDER DENYING DEFENDANT’S
REQUEST FOR DISMISSAL; SETTING
DEADLINE FOR FURTHER ACTION

Plaintiff(s),
v.

For the Northern District of California

United States District Court

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DEBORAH J. CABRAL,
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[Docket Item No. 8]

Defendant(s).
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/

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On or about August 26, 2011, the court received a letter containing the following one-

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sentence statement: “Please dismiss the District Court Case # CV11-03714 EJD.” See Docket Item

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No. 8. The letter was signed only by Defendant Deborah J. Cabral (“Cabral”).

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Pursuant to Federal Rule of Civil Procedure 41, there are only two ways in which an action

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can be dismissed voluntarily: (1) through a Notice of Dismissal filed by the plaintiff before the

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opposing party serves an answer or motion for summary judgment, or (2) through a stipulation for

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dismissal signed by all parties who have appeared. Fed. R. Civ. P. 41(a). Rule 41 also allows for

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dismissal by court order “at the plaintiff’s request...on terms that the court considers proper.” Fed.

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Rule Civ. Proc. 41(a)(2) (emphasis added).

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While her intent is not entirely clear, it appears Cabral seeks to dismiss this case either

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voluntarily or by court order. But as stated above, a defendant in a civil action - like Cabral - cannot

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effectuate a unilateral dismissal. Only a plaintiff may do so pursuant subsections (a)(1)(A)(i) or

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(a)(2) of Rule 41. In addition, Cabral’s letter cannot be classified as a stipulation for dismissal under

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subsection (a)(1)(A)(ii) of Rule 41 as only her signature appears on the document. Thus, without an
Case No. 5:11-cv-03714 EJD
ORDER DENYING DEFENDANT’S REQUEST FOR DISMISSAL; SETTING DEADLINE FOR FURTHER
ACTION (EJDLC1)

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indication on the court docket that Plaintiff Copper Hill, Inc. (“Copper Hill”) either separately

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requests or stipulates to the dismissal, Cabral’s informal request must be denied.

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In light of the discussion above, however, the court finds it appropriate to order a deadline

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for further action by the parties. Accordingly, Copper Hill shall file a request for dismissal or the

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parties shall submit a stipulation for dismissal on or before September 26, 2011, if this case is to be

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dismissed. If such a request or stipulation is not filed by the date ordered, the court will thereafter

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summarily remand this unlawful detainer case to the Superior Court of California, County of Santa

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Clara, pursuant to 28 U.S.C. § 1446(c)(4), as no basis for federal jurisdiction exists upon a review of

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the Notice of Removal and its attached documents. See Vaden v. Discovery Bank, 129 S. Ct. 1262,
1272 (2009).

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 14, 2011
EDWARD J. DAVILA
United States District Judge

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Case No. 5:11-cv-03714 EJD
ORDER DENYING DEFENDANT’S REQUEST FOR DISMISSAL; SETTING DEADLINE FOR FURTHER
ACTION (EJDLC1)