Nordbye v. Mountain Lion Acquisitions Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT NORDBYE, Case No. 1:19-cv-00940-DAD-SAB 12 Plaintiff, ORDER DISREGARDING STIPULATION OF DISMISSAL 13 v. (ECF No. 37) 14 MOUNTAIN LION ACQUISITIONS INC., et al., TEN DAY DEADLINE 15 Defendants. 16 17 Plaintiff Scott Nordbye filed this action against Defendants Mountain Lion Acquisitions 18 Inc. and Trans Union LLC on July 10, 2019. (ECF No. 1.) On August 27, 2019, Defendant 19 Mountain Lion Acquisitions filed an answer to the complaint. (ECF No. 14.) On September 11, 20 2019, Defendant Trans Union filed an answer to the complaint. (ECF No. 16.) On January 13, 21 2020, a stipulation of dismissal of Defendant Mountain Lion Acquisitions was filed. (ECF No. 22 37.) The stipulation of dismissal is only signed by Plaintiff and Defendant Mountain Lion 23 Acquisitions. 24 Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an 25 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 26 motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 27 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1 | 1997)). Here, Defendants Mountain Lion Acquisitions and Trans Union have filed an answer, so 2 | Plaintiff cannot voluntarily dismiss a defendant pursuant to Rule 41(a)(1)(A)q). 3 Rule 41(a)(1)(A)(i) provides that a “plaintiff may dismiss an action without a court order 4 | by filing a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 5 | 41(a)(1)(A)Gi). Rule 41(a) allows a party to dismiss some or all of the defendants in an action 6 | through a Rule 41(a) notice. Wilson, 111 F.3d at 692. However, although Trans Union has 7 | appeared, the stipulation is only signed by Plaintiff and Defendant Mountain Lion Acquisitions. 8 A party may also dismiss an action by filing a motion requesting the Court to dismiss the 9 | action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is 10 | addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. 11 | Inc., 679 F.2d 143, 145 (9th Cir. 1982). 12 Plaintiff's notice of voluntary dismissal is defective under Rule 41(a) because it is not a 13 | signed stipulation by all parties who have appeared and it is not a motion under Rule 41(a)(2). If 14 | Plaintiff wishes to dismiss this action, he is required to comply with the procedures set forth in 15 | Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)Gi) signed by all parties who 16 | have appeared or a motion under Rule 41(a)(2). 17 Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED. 18 | Plaintiff shall file a request for dismissal that complies with Rule 41 within ten (10) days from 19 | the date of entry of this order. 20 IT IS SO ORDERED. OF. nf ee 22 | Dated: _ January 14, 2020_ Of 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28