IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 10, 2011
RICK W. CORDEIRO, PLAINTIFF,
SYSCO FOOD SERVICES OF SACRAMENTO, INC, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On March 3, 2011 plaintiff Rick W. Cordeiro filed a Notice of Voluntary Dismissal.*fn1 (Dkt. No. 25.) The Notice of Voluntary dismissal states that, "pursuant to Federal Rules of Civil Procedure, Rule 41(a), Plaintiff voluntarily dismisses Defendant Sysco Food Services of Sacramento, Inc. from the above-captioned action with prejudice, each party to bear their own costs." (Dkt. No. 25 at 1.)
Federal Rule of Civil Procedure 41(a)(1)(A)(i) 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. . . " (emphasis added.)
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).
Therefore, plaintiff's notice of dismissal is defective because defendant Sysco Food Services of Sacramento, Inc., served an answer to plaintiff's complaint before plaintiff filed his notice of dismissal. A review of the court's docket reflects that defendant Sysco Food Services of Sacramento, Inc. has filed an answer to plaintiff's complaint. (Dkt. No. 12.) Thus, in order for plaintiff to dismiss defendant Sysco Food Services of Sacramento, Inc. (the only defendant in this action) without a court order, plaintiff must file a stipulation of dismissal signed by all parties who have appeared. Fed. R. Civ. P. 41(a)(1)(A)(ii). Absent such a stipulation, plaintiff must obtain a "court order, on terms that the court considers proper," in order to effectuate the voluntary dismissal plaintiff appears to seek. Fed. R. Civ. P. 41(a)(2).
Accordingly, the undersigned hereby ORDERS that: 1. Plaintiff's "Notice of Voluntary Dismissal" is defective and does not effectuate the dismissal of defendant Sysco Food Services of Sacramento, Inc. without prejudice;
2. Within 30 days of the date of this order, defendant Sysco Food Services of Sacramento, Inc. shall each file either: (1) a statement of non-opposition and joinder in its dismissal from this action, or (2) an opposition to its dismissal, which may alternatively request that the court consider imposing appropriate conditions on the dismissal sought by plaintiff.*fn2
IT IS SO ORDERED.