IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 12, 2011
MALIK JONES, PLAINTIFF,
T. FARLEY, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff has filed a notice of voluntary dismissal. Dckt. No. 30. Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an 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). Before plaintiff filed the notice of voluntary dismissal, defendant filed an answer to the complaint and a motion for summary judgment. Dckt. Nos. 16, 26. Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(I). However, defendant may choose to stipulate to dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should defendant decline to stipulate as such, the court may dismiss this action based on plaintiff's request, "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, defendant 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 defendant 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).
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