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Harris v. City of Fresno

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 26, 2009

ROBERT HARRIS, PLAINTIFF,
v.
CITY OF FRESNO, DEFENDANT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

DISMISSING CASE WITHOUT ORDER VACATING ORDER PREJUDICE (DOC. 122)

On July 27, 2009, the parties notified the Court that they had reached a negotiated settlement and that they would be requesting dismissal of the action with prejudice. Doc. 119. On August 20, 2009, Plaintiff submitted a "Notice of Entry of Dismissal Without Prejudice," indicating that, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), he was "voluntarily dismiss[ing] this case without prejudice," and that "each party is to bear its/her own fees and costs." Doc. 120. On August 24, 2009, Defendant City of Fresno filed an objection to dismissal without prejudice, arguing: (1) that Plaintiff's unilateral dismissal violates Federal Rule of Civil Procedure 41(a); and (2) Plaintiff's dismissal sets forth an inaccurate representation of the terms of the parties' agreement to resolve the case. Doc. 121.

Defendant's objection based upon Rule 41 is well founded. Rule 41(a)(1)(A)(i) permits voluntary dismissal as a matter of right only before the opposing party has served either an answer or a motion for summary judgment. Otherwise, Rule 41(a)(1)(A)(ii) permits voluntary dismissal of an action without a court order only upon "stipulation of dismissal signed by all parties who have appeared." Nor does Plaintiff invoke Rule 41(A)(2) which permits dismissal at the plaintiff's request "by court order, on terms that the court considers proper."

Notwithstanding Defendant's objection, on August 26, 2009, the court inadvertently entered an order granting Plaintiff's request for voluntary dismissal. Doc. 122. Pursuant to Federal Rule of Civil Procedure 60(a)(corrections based on clerical mistakes; oversights and omissions), this order is VACATED. Plaintiffs is ordered to file a stipulation of dismissal, a motion for dismissal pursuant to Rule 42(a)(2), or a status report on or before September 11, 2009.

IT IS SO ORDERED.

20090826

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