IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 10, 2011
BRENT WINTERS, ET AL., PLAINTIFFS,
DELORES JORDAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On December 1, 2010, plaintiff Jeremiah Winters filed a document entitled "Notice of Withdrawal as Plaintiff." (Dkt. No. 207.) In its entirety, the notice states: "NOW
COMES Jeremiah Winters, pro se, and informs the Court of his withdrawal as Plaintiff in the above-cited case." (Id.) The undersigned construes Jeremiah Winters's notice as a purported notice of voluntary dismissal of his claims pursuant to Federal Rule of Civil Procedure 41(a).
Federal Rule of Civil Procedure 41(a)(1)(A) provides that "the plaintiff may dismiss an action without a court order by filing . . . (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." Dismissal under this rule requires no action on the part of the court and divests the court of jurisdiction once the notice of voluntary dismissal is filed. See, e.g., United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008).
Here, the operative complaint is plaintiffs' Third Amended Complaint (Dkt.No. 66), and defendant Valerie Logsdon has filed an answer to the Third Amended Complaint (Dkt. No. 183). Additionally, the following defendants have obtained judgments in their favor with respect to the claims of plaintiffs, which includes Jeremiah Winters: Judy Ford; Ryan Arbuckle; and Burrows Security Force. (Dkt. Nos. 194, 198, 201.) Furthermore, two motions seeking attorneys' fees from plaintiffs, including Jeremiah Winters, were filed by defendants Judy Ford and Valerie Logsdon prior to the date that Jeremiah Winters filed his notice of withdrawal. (Dkt. Nos. 202, 204.) Based on the foregoing, Jeremiah Winters has effectuated the dismissal without court order of all defendants in this action except the following defendants: Judy Ford; Valerie Logsdon; Ryan Arbuckle; and Burrows Security Force. See Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993) (holding that "Rule 41(a)(1) allows a plaintiff to dismiss without a court order any defendant who has yet to serve an answer or a motion for summary judgment"). On the present record, Jeremiah Winters may not effectuate a voluntary dismissal of defendants Ford, Logsdon, Arbuckle, or Burrows Security Force without a court order simply by filing a notice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Furthermore, it is clear that Jeremiah Winters has not sought a voluntary dismissal of his claims against defendants Ford, Logsdon, Arbuckle, or Burrows Security Force by filing a stipulation of dismissal signed by all parties who have appeared. Accordingly, Jeremiah Winters cannot effectuate a dismissal without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
In short, as to Ford, Logsdon, Arbuckle, or Burrows Security Force, Jeremiah Winters must obtain either a stipulation signed by all parties who have appeared, or a "court order, on terms that the court considers proper," in order to effect the voluntary dismissal of his claims against defendants. See Fed. R. Civ. P. 41(a). Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff Jeremiah Winters's "Notice of Withdrawal as Plaintiff" (Dkt. No. 207) effectuates a voluntary dismissal of his claims as to all defendants except defendants Judy Ford, Valerie Logsdon, Ryan Arbuckle, and Burrows Security Force.
2. Within 30 days of the date of this order, defendants Ford, Logsdon, Arbuckle, and Burrows Security Force shall each file either: (1) a statement of non-opposition and joinder in Jeremiah Winters's "Notice of Withdrawal as Plaintiff" from this action, or (2) an opposition to Jeremiah Winters's "Notice of Withdrawal as Plaintiff", which may alternatively request that the court consider imposing appropriate conditions on the withdrawal sought by plaintiff Jeremiah Winters.*fn1
IT IS SO ORDERED.