UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 6, 2012
DAVID JENKINS, NEXT PROTEINS, INC., AND DOES 1--10,
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER RE: NOTICE OF DISMISSAL WITHOUT PREJUDICE THIRD CAUSE OF ACTION ONLY (ECF No. 3)
On February 3, 2012, Plaintiff Janet Carrol filed a notice of dismissal without prejudice third cause of action only, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Notice, ECF No. 3)
Voluntary dismissal is governed by Federal Rule of Civil Procedure 41. Plaintiffs may voluntarily dismiss actions without a court order before the opposing party serves an answer or motion for summary judgment, or with the opposing party's consent. Fed. R. Civ. P. 41(a)(1)(A). However, the Ninth Circuit has held that a voluntary dismissal may not be used to dismiss fewer than all claims against a single defendant. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988). Instead, Rule 15(a) is the appropriate mechanism by which a plaintiff may eliminate an issue, or one or more but less than all of several claims, without dismissing as to any of the defendants. Id. (citing 5 J. Moore, L. Lucas & J. Wicker, Moore's Federal Practice ¶ 41.06-1 at 41-83 to -84 (1987)).
Accordingly, the Court sua sponte denies Plaintiff's notice of voluntary dismissal of the third cause of action without prejudice to Plaintiff amending her complaint pursuant to Rule 15(a).
IT IS SO ORDERED.
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