IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 13, 2013
SCOTT N. JOHNSON, PLAINTIFF,
SHADI RAM, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On February 12, 2013, plaintiff filed a request for dismissal of the action without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. (Dkt. No. 28.)*fn1
Rule 41(a)(2) provides, in part, that "[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper...Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice." Fed. R. Civ. P. 41(a)(2).
Although defendants have appeared in the action, and a pretrial conference and trial before the district judge is presently set for March 21, 2013, and April 30, 2013, respectively, plaintiff states that he has been unable to contact defendants, given that their business is apparently shut down and the telephone number disconnected. (Dkt. Nos. 25, 28.) As such, plaintiff represents that he has been unable to obtain defendants' stipulation to a dismissal pursuant to Rule 41(a)(1)(A)(ii).
Accordingly, IT IS HEREBY ORDERED that:
1. In the event that defendants seek to oppose plaintiff's request for dismissal of the action without prejudice pursuant to Rule 41(a)(2), defendants shall file an opposition to that request within fourteen (14) days of this order.
2. Failure to file a timely opposition will be construed as defendants' consent to such a dismissal, and will result in the undersigned issuing findings and recommendations to the district judge that this action be dismissed without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.