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Brent Allen Winters, et al v. Delores Jordan

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


June 30, 2011

BRENT ALLEN WINTERS, ET AL., PLAINTIFFS,
v.
DELORES JORDAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

On April 15, 2011, the magistrate judge filed findings and recommendations herein, which acknowledged that plaintiff Jeremiah Winters had voluntarily dismissed his claims against all defendants in this action except defendants Judy Ford, Valerie Logsdon, Ryan Arbuckle, and Burrows Security Force. (See Findings & Recommendations, Apr. 15, 2011, Dkt. No. 281.) The magistrate judge recommended that pursuant to Federal Rule of Civil Procedure 41(a)(2), certain conditions be imposed on Jeremiah Winters's voluntary dismissal, including that the voluntarily dismissed claims be dismissed with prejudice.

The proposed findings and recommendations were served on the parties and contained notice that any objections to the findings and recommendations were to be filed within fourteen days. Although no party filed objections to the findings and recommendations, Jeremiah Winters filed, on April 29, 2011, a document entitled "Withdrawal of Notice of Withdrawal," which purported to withdraw his notice of voluntary dismissal. (Withdrawal of Notice of Withdrawal, Dkt. No. 285.)

In reviewing the proposed findings and recommendations, the court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the proposed findings and recommendations in full, except that the dismissal of Jeremiah Winters's remaining claims that have not already been dismissed with prejudice are dismissed without prejudice. As to Jeremiah Winters's purported withdrawal of his notice of voluntary dismissal, the court concludes that the voluntary dismissal was self-executing and effectively resolved Jeremiah Winters's remaining claims insofar as those claims were asserted in this action. See United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008). Accordingly, the court concludes that Jeremiah Winters's "Withdrawal of Notice of Withdrawal" is without effect in this case.

Accordingly, IT IS ORDERED that:

1. The Proposed Findings and Recommendations filed April 15, 2011 (Dkt. No. 281), are ADOPTED in part.

2. Plaintiff Jeremiah Winters is dismissed from this action, subject to the conditions stated below.

3. Plaintiff Jeremiah Winters is subject to the judgments already entered in favor of defendants Judy Ford, Ryan Arbuckle, and Burrows Security Force.

4. Plaintiff Jeremiah Winters shall remain jointly and severally liable for an award of attorney's fees and costs awarded to defendants Ford and Logsdon pursuant to California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, as a result of Ford's and Logsdon's successful anti-SLAPP motions. To date, the magistrate judge granted Logsdon's motion for attorney's fees and awarded Logsdon $12,925.00 in attorney's fees (Order, Apr. 21, 2011, Dkt. No. 284).

5. Any remaining claims asserted by plaintiff Jeremiah Winters that have not already been dismissed with prejudice are dismissed without prejudice.

20110630

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