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Scott N. Johnson v. Shadi Ram

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 8, 2013

SCOTT N. JOHNSON, PLAINTIFF,
v.
SHADI RAM, ET AL. DEFENDANTS. FINDINGS AND RECOMMENDATIONS

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 stated 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 represented that he has been unable to obtain defendants' stipulation to a dismissal pursuant to Rule 41(a)(1)(A)(ii).

Therefore, on February 14, 2013, the undersigned issued an order requiring defendants to file any opposition to plaintiff's request for dismissal of the action without prejudice pursuant to Rule 41(a)(2) within fourteen (14) days of the order. (Dkt. No. 29.) Defendants were cautioned that failure to file a timely opposition would be construed as defendants' consent to such a dismissal, and would 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. (Id.)

Although the above-mentioned deadline has now passed, no such opposition was filed, and the undersigned therefore assumes that defendants have no opposition to plaintiff's request.

Accordingly, IT IS HEREBY RECOMMENDED that the action be DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

(14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served on all parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).


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