IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 25, 2011
TERRY GIBSON, PLAINTIFF,
HAWKINS, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending is a document filed on July 19, 2011, in which plaintiff requests that this action be dismissed. As explained below, the court construes this as a notice of voluntary dismissal and provides the opportunity for defendants to stipulate to dismissal without prejudice.
The Federal Rules of Civil Procedure govern voluntary dismissal. See Fed. R. Civ. P. 41(a). Subject to exceptions not applicable here, a plaintiff may voluntarily 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. Fed. R. Civ. P. 41(a)(1)(A).
On January 21, 2011, the defendants filed an answer to the complaint. Thereafter, the court issued a discovery and scheduling order. On July 19, 2011, plaintiff filed a notice of voluntary dismissal. However, since defendants have answered, plaintiff cannot voluntarily dismiss it without the defendants' consent. Thus, the defendants must have an opportunity to consent to the dismissal.
Accordingly, it is ORDERED that within 14 days of the date of this order, defendants may file and serve a document consenting to dismissal of this action without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should defendants file their consent, the court will construe the consent and the instant filing together as a stipulation for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).
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