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Williams v. Malfi

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 1, 2009

JOHN WESLEY WILLIAMS, PLAINTIFF,
v.
A.J. MALFI, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's amended complaint (Doc. 18) as against defendants Malfi, Carroll, Grannis, Kelly, Young, Hsu, and the law firm of Lawrence, Beach, Allen, and Choi.*fn1 All individual defendants, except Malfi, have appeared in the action. Defendant law firm has waived service but not yet appeared. Service of process on defendant Malfi was returned unexecuted.

Pending before the court are the following motions and requests: (1) motion to dismiss filed by defendants Carroll, Grannis, and Kelly (Doc. 20); (2) motion to dismiss filed by defendant Hsu (Doc. 28); (3) request for judicial notice in support of defendant Hsu's motion to dismiss (Doc. 29); (4) plaintiff's motion for injunctive relief (Doc. 22); (5) plaintiff's motion to disqualify counsel for defendant Hsu (Doc. 33); and (6) plaintiff's motion for voluntary dismissal of defendants Hsu and the law firm of Lawrence, Beach, Allen, and Choi (Doc. 42).

In his motion for voluntary dismissal of defendant Hsu and defendant law firm, plaintiff states that he has entered into a settlement in another case and that, as part of that settlement, he has agreed to voluntary dismiss these two defendants from this action. Good cause appearing therefor, plaintiff's request will be granted. See Fed. R. Civ. P. 41(a)(2). Defendant Hsu and defendant law firm of Lawrence, Beach, Allen, and Choi shall be dismissed from this action.

The voluntary dismissal of defendant Hsu renders moot her separate motion to dismiss and related request for judicial notice, as well as plaintiff's motion to disqualify her counsel. The Clerk of the Court will be directed to terminate these matters as pending motions on the court's docket. The remaining motions will be addressed separately.

Finally, as noted above, service of process directed to defendant Malfi was returned unexecuted. Plaintiff will be required to show cause in writing why this defendant should not be dismissed for failure to effect timely service. See Fed. R. Civ. P. 4(m).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request for voluntary dismissal of defendant Hsu and defendant law firm of Lawrence, Beach, Allen, and Choi (Doc. 42) is granted;

2. The Clerk of the Court is directed to terminate Hsu and law firm of Lawrence, Beach, Allen, and Choi as defendants to this action;

3. Defendant Hsu's motion to dismiss (Doc. 28), defendant Hsu's request for judicial notice (Doc. 29), and plaintiff's motion to disqualify defendant Hsu's counsel (Doc.33) are now moot and the Clerk of the Court is directed to terminate these as pending motions on the court's docket; and

4. Plaintiff shall show cause in writing, within 30 days of the date of this order, why defendant Malfi should not be dismissed for failure to effect timely service of process.


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