IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 21, 2011
UNITED STATES OF AMERICA, RESPONDENT,
AID LUANGRATH, JR., MOVANT.
Movant, proceeding through counsel, filed a Supplemental Status Report indicating he no longer wishes to proceed with his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Dckt. No. 306. Subject to exceptions not applicable here, movant may voluntarily dismiss this action without prejudice, and 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.
Fed. R. Civ. P. 41(a)(1)(A); see also Rule 12, Rules Governing Section 2255 Proceedings. Because respondent filed an answer before movant filed the Supplemental Status Report, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(I). See Dckt. No. 227. However, respondent may choose to stipulate to dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should respondent decline to stipulate as such, the court may dismiss the action based on movant's implicit request in his Supplemental Status Report, "on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2).
Accordingly, it is ORDERED that within 14 days of the date of this order, respondent may file and serve a document stipulating to dismissal of this action without prejudice pursuant to Rule 41(a)(1)(A)(ii). In the event respondent so stipulates, the court will construe the parties' filings as stipulation of dismissal for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).
© 1992-2011 VersusLaw Inc.