Etienne v. United States of America

Filing 54

ORDER granting Plaintiff's 53 Motion to Dismiss under Fed. R. Civ. P. 41(a)(2). This action is dismissed without prejudice. Each party is to bear its own costs and fees. All other pending motions and case deadlines are STRICKEN as moot. Signed by Judge Jamal N Whitehead. (KRA)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KIM A. ETIENNE,

CASE NO. 21-cv-01429
Plaintiff,

ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

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On October 24, 2023, Plaintiff Kim Etienne moved to voluntarily dismiss his
lawsuit against Defendant United States of America under Fed. R. Civ. P.
41(a)(1)(A). Dkt. No. 53. The Court could not, however, grant the relief requested on
Etienne’s unilateral motion because the Government had already filed an answer.
Dkt. No. 18; see Fed. R. Civ. P. 41(a)(1)(i). So the Court directed the Clerk to renote
Etienne’s motion for November 10, 2023, meaning the Government’s response was
due on November 6 and Etienne’s reply was due on November 10. See Dkt. No. 53;
see also LCR 7(d)(3). Neither party filed additional papers in support of or
opposition to Etienne’s motion for dismissal. See Dkt.

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ORDER - 1

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Because Etienne may no longer dismiss his case as a matter of right, and

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because he does not present his motion as a stipulation, the Court construes his

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request as a motion to dismiss under Rule 41(a)(2). “Rule 41(a)(2) permits the

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voluntary dismissal [of a case] by court order at the request of the plaintiff, if the

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court finds it proper.” Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 1119

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n.3 (9th Cir. 2020). So long as the defendant will not be prejudiced or unfairly

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affected by dismissal, district courts should exercise their discretion to allow

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dismissal. Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th

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Cir. 1989). Dismissal under Rule 41(a)(2) does not require imposing attorneys’ fees

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and costs. Id.
Etienne has concluded that he cannot proceed pro se with this medical

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malpractice case and he wishes to dismiss his case. Dkt. No. 52 at 5. The

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Government does not oppose dismissal. See LCR 7(b)(2) (“[I]f a party fails to file

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papers in opposition to a motion, such failure may be considered by the court as an

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admission that the motion has merit.”).

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Accordingly, the Court GRANTS Etienne’s motion under Fed. R. Civ. P.

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41(a)(2), and his action is dismissed without prejudice. Each party is to bear its own

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costs and fees. All other pending motions and case deadlines are STRICKEN as

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moot.

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Dated this 13th day of November 2023.

A

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Jamal N. Whitehead
United States District Judge

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ORDER - 2