STIPULATION FOR DISMISSAL OF COUNTERCLAIM BY CLAIMANT ESTRADA; ORDER
IT IS HEREBY STIPULATED by and between the parties, through their respective counsel, that the Counterclaim of Claimant Cipriano Estrada be dismissed without prejudice, each party to bear its own fees and costs.
Respectfully submitted, Date: May 3, 2011
BENJAMIN B. WAGNER United States Attorney
BENJAMIN E. HALL Assistant U.S. Attorney
J. PATRICK McCARTHY Attorney for Claimant Cipriano Estrada
The parties appear to be stipulating to dismiss the Counterclaim of Claimant Cipriano Estrada pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Rule 41(a)(1), in relevant part, reads:
an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
Rule 41(a)(1)(ii) thus allows the parties to dismiss an action voluntarily, after service of an answer, by filing a written stipulation to dismiss signed by all of the parties who have appeared, although an oral stipulation in open court will also suffice. Carter v. Beverly Hills Sav. & Loan Asso., 884 F.2d 1186, 1191 (9th Cir. 1989); Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 1986). Because the parties have filed a stipulation for dismissal of the Counterclaim of Claimant Cipriano Estrada that is signed by all parties who have made an appearance, the Counterclaim has terminated. See Fed. R. Civ. Pro. 41(a)(1)(ii).
Therefore, IT IS HEREBY ORDERED that the Counterclaim of Claimant Cipriano Estrada is DISMISSED in light of the parties' filed and signed Rule 41(a)(1) Stipulation For Dismissal With Prejudice.