Etienne v. United States of America
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)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
KIM A. ETIENNE,
CASE NO. 21-cv-01429
UNITED STATES OF AMERICA,
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.
ORDER - 1
Because Etienne may no longer dismiss his case as a matter of right, and
because he does not present his motion as a stipulation, the Court construes his
request as a motion to dismiss under Rule 41(a)(2). “Rule 41(a)(2) permits the
voluntary dismissal [of a case] by court order at the request of the plaintiff, if the
court finds it proper.” Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 1119
n.3 (9th Cir. 2020). So long as the defendant will not be prejudiced or unfairly
affected by dismissal, district courts should exercise their discretion to allow
dismissal. Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th
Cir. 1989). Dismissal under Rule 41(a)(2) does not require imposing attorneys’ fees
and costs. Id.
Etienne has concluded that he cannot proceed pro se with this medical
malpractice case and he wishes to dismiss his case. Dkt. No. 52 at 5. The
Government does not oppose dismissal. See LCR 7(b)(2) (“[I]f a party fails to file
papers in opposition to a motion, such failure may be considered by the court as an
admission that the motion has merit.”).
Accordingly, the Court GRANTS Etienne’s motion under Fed. R. Civ. P.
41(a)(2), and his 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
Dated this 13th day of November 2023.
Jamal N. Whitehead
United States District Judge
ORDER - 2
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