Professional Solutions Insurance Company v. Cardot ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 PROFESSIONAL SOLUTIONS Case No. 1:19-cv-01605-NONE-SAB 11 INSURANCE COMPANY, ORDER DISREGARDING NOTICE OF 12 Plaintiff, VOLUNTARY DISMISSAL 13 v. (ECF No. 22) 14 JOHN M. CARDOT, et al., 15 Defendants. 16 17 Plaintiff Professional Solutions Insurance Company filed this action against Defendants 18 John Cardot, and Coleman & Horowitt LLP, on November 8, 2019. (ECF No. 1.) On March 31, 19 2020, Defendant John Cardot filed an answer to the complaint, and on April 23, 2020, Defendant 20 Coleman & Horowitt LLP filed an answer. (ECF Nos. 10, 12.) On April 13, 2021, Plaintiff filed 21 a notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil 22 Procedure, attempting to dismiss the action without prejudice and with each party to bear its own 23 costs and attorney fees. (ECF No. 22.) No Defendants signed the filing. (Id.) 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. 1997)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action 1 | pursuant to Rule 41(a)(1)(A)Q@). 2 Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an 3 | action without a court order by filing a stipulation of dismissal signed by all parties who have 4 | appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). A party may also dismiss an action by filing a 5 | motion requesting the Court to dismiss the action. Fed. R. Civ. P. 41(a)(2). A motion for 6 | voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. 7 | Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982). 8 Plaintiff's notice of voluntary dismissal is defective under Rule 41(a) because it is not a 9 | signed stipulation by all parties who have appeared and it is not a motion under Rule 41(a)(2). If 10 | Plaintiff wishes to dismiss this action, they are required to comply with the procedures set forth 11 | in Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)@i) or a motion under Rule 12 | 41(a)(2). 13 Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED. 14 15 IT IS SO ORDERED. OF. ee 16 | Dated: _April 13, 2021 _ ef 4 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28