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Phillip Mcanelly v. Pnc Mortgage

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 28, 2012

PHILLIP MCANELLY,
PLAINTIFF,
v.
PNC MORTGAGE, A DIVISION OF PNC BANK, N.A., NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK, BANK OF AMERICA, CAL-WESTERN RECONVEYANCE CORPORATION, AND DOES 1-100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

On March 19, 2012, counsel for Plaintiff Phillip McAnelly filed a Notice of Voluntary Dismissal, pursuant to Federal Rule of Civil Procedure 41(a), as to Defendant Bank of America, N.A.

Rule 41(a)(1) permits a plaintiff to voluntarily dismiss a party*fn1 either where the party has not appeared, or pursuant to stipulation signed by all parties who have appeared.

That subsection is unavailable to Plaintiff here because Defendant Bank of America has appeared, and because no stipulation for dismissal has been presented. While Rule 41(a)(2) permits the court to issue an order upon such terms it deems proper, reliance on that subsection for dismissing a party requires the filing of a motion.

Consequently, because Plaintiff's request as currently framed fails to fit under any of the provisions of Rule 41(a), Plaintiff's request for voluntary dismissal is improper at this juncture and must be rejected, without prejudice to being resubmitted in proper form.


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