McDow v. Shelter Financial Services LLC ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 KENNEDY MCDOW, CASE NO. 1:21-CV-0163 AWI EPG 7 Plaintiff ORDER DISMISSING MATTER 8 v. 9 SHELTER FINANCIAL SERVICES, (Doc. Nos. 26, 30, 31) LLC, et al., 10 Defendants 11 12 13 On September 17, 2021, Plaintiff filed a request to dismiss all parties. See Doc. No. 26. 14 On September 21, 2021, the Magistrate Judge treated the request as brought under Rule 15 41(a)(1) and ordered the Clerk to give effect to the dismissal to all defendants, save for the Merced 16 Police Department (“MPD”). See Doc. No. 28. MPD did not sign the request and had previously 17 filed an answer, thereby preventing the Plaintiff for unilaterally and automatically dismissing 18 MPD through a Rule 41(a)(1) dismissal. See id. 19 On October 8, 2021, the Court acknowledged the above procedural history and construed 20 Plaintiff’s request to be a Rule 41(a)(2) request for dismissal as to MPD without prejudice. See 21 Doc. No. 30. The Court ordered MPD to file a response to the requested dismissal, but did inform 22 MPD that a failure to file a response would be construed as a non-opposition that would result in 23 the dismissal of MPD without prejudice. See id. 24 Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all 25 of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy 26 Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer, but has 27 not signed a stipulation to dismiss, a plaintiff’s voluntary dismissal of an “action” must be affected 28 through Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of 1 Jose, 111 F.3d 688, 692 (9th Cir. 1999); Mayes v. Fujimoto, 181 F.R.D. 453, 455 (D. Haw. 2 11998). Rule 41(a)(2) provides in pertinent part: “Except as provided in Rule 41(a)(1), an action 3 be dismissed at the plaintiff’s request only by court order, on terms that the court considers 4 proper.” Fed. R. Civ. Pro. 41(a)(2). “A district court should grant a motion for voluntary 5 dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal 6 | prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). 7 Here, Plaintiff clearly no longer wishes to pursue litigation at this time. Moreover, MPD 8 | has now expressly stated that it consents to dismissal. With MPD’s consent, there is no apparent 9 || prejudice to MPD and no reason to keep this case open. Therefore, the Court will dismiss MPD 10 | without prejudice pursuant to Plaintiff’s unopposed Rule 41(a)(2) requested dismissal and close 11 case. See Fed. □□ Civ. P. 41(a)(2); Smith, 263 F.3d at 975. 12 13 ORDER 14 Accordingly, IT IS HEREBY ORDERED that: 15 Plaintiff’s Rule 41(a)(2) motion to dismiss Defendant Merced Police Department without 16 prejudice is GRANTED; 17 The Clerk shall CLOSE this case; and 18 All pending dates and deadlines are VACATED. 19 20 ITIS SO ORDERED. 31 Dated: _ October 12, 2021 SE SISTRICI “UDGE 22 23 24 25 26 27 28 ry