IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 4, 2012
JAMES K. GOLDSMITH, JR., PLAINTIFF,
A. NANGALAMA, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff moves to dismiss this action. Dckt. No. 47. 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)(I), (ii). Before plaintiff moved to dismiss his case, defendants Nangalama and Ma moved for summary judgment. Dckt. Nos. 32, 40. Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(I). However, defendants may choose to stipulate to dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should defendants 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, defendants 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 defendants so stipulate, the court will construe the parties' filings as a stipulation of dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).
© 1992-2012 VersusLaw Inc.