Heidi Kellerhals v. Ruelas ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HEIDI KELLERHALS, No. 1:20-cv-01279-EPG 12 Plaintiff, 13 v. ORDER GRANTING MOTION FOR VOLUNTARY DISMISSAL 14 MAIRA RUELAS, et al., (ECF No. 34) 15 Defendants. 16 17 On April 14, 2021, Plaintiff Heidi Kellerhals filed a notice of voluntary dismissal. (ECF 18 No. 34). Plaintiff’s filing was not signed by all parties, and Defendants Maira Ruelas Brennan 19 Gonzalez and Tulare County (“Defendants”) had already filed an answer. Therefore, on April 15, 20 2021, the Court treated the filing as a motion for a voluntary dismissal under Federal Rule of 21 Civil Procedure 41(a)(2). (ECF No. 35). The Court ordered Defendants to respond to the motion 22 within fourteen days or for the parties to file a stipulated motion to dismiss under Federal Rule of 23 Civil Procedure 41(a)(1). (Id. at 2). 24 More than fourteen days have elapsed and Defendants have not filed a response, nor have 25 the parties filed a stipulation to dismiss. Accordingly, the Court construes Plaintiff’s motion as 26 unopposed. See E.D. Cal. Local Rule 230(c) (“A failure to file a timely opposition may also be 27 construed by the Court as a non-opposition to the motion.”). 28 /// 1 A Rule 41(a)(2) motion for voluntarily dismissal “is addressed to the district court's sound 2 | discretion.” Stevedoring Serv. of Am. v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th Cir.1989). 3 | “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a 4 | defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 5 | 263 F.3d 972, 975 (9th Cir.2001). “‘[L]egal prejudice’ means ‘prejudice to some legal interest, 6 | some legal claim, some legal argument.’” Jd. at 976 (quoting Westlands Water Dist. v. United 7 | States, 100 F.3d 94, 97 (9th Cir.1996)). 8 Here, Defendant has not filed a timely opposition to the motion indicating it does not 9 | believe it will suffer any legal prejudice despite the Court’s order, and the Court has construed 10 | this failure as Defendants’ non-opposition to the motion. Therefore, the Court grants □□□□□□□□□□□ 11 | motion for a voluntary dismissal. 12 Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED, WITH 13 | PREJUDICE. The Clerk of Court is respectfully directed to close this case. 14 15 IT IS SO ORDERED. 16 | Dated: _ May 7, 2021 [Je heey — UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28