(PS) Velez v. Waterloo-CA Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE VELEZ, No. 2:19-cv-01732-TLN-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 WATERLOO-CA INC., et al., 15 Defendants. 16 17 On September 3, 2019, plaintiff filed the operative complaint. (ECF No. 1.) 18 On October 4, 2019, plaintiff and defendant Waterloo-CA, Inc. filed a stipulation to 19 extend time for Waterloo to file a responsive pleading. (ECF No. 4.) 20 On October 16, 2019, Angelina’s Spaghetti House filed an answer to the complaint. (ECF 21 No. 7.) 22 On November 21, 2019, plaintiff filed a motion for voluntary dismissal with prejudice and 23 without imposition of costs or attorney fees as to defendants Waterloo-CA Inc. and Angelina’s 24 Spaghetti House. (ECF No. 9.) 25 On December 16, 2019, plaintiff filed a notice of voluntary dismissal with prejudice and 26 without imposition of costs or attorney fees as to defendant International Waffle Café and all 27 defendants. (ECF No. 10.) 28 On January 17, 2020, Angelina’s Spaghetti House filed a notice of non-opposition to 1 plaintiff’s motion for voluntary dismissal. (ECF No. 13.) 2 Federal Rule of Civil Procedure 41 provides in part: 3 (a) Voluntary Dismissal. 4 (1) By the Plaintiff. 5 (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal 6 statute, the plaintiff may dismiss an action without a court order by filing: 7 (i) a notice of dismissal before the opposing 8 party serves either an answer or a motion for summary judgment; or 9 (ii) a stipulation of dismissal signed by all 10 parties who have appeared. 11 (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if 12 the plaintiff previously dismissed any federal- or state-court action based on or including the same 13 claim, a notice of dismissal operates as an adjudication on the merits. 14 (2) By Court Order; Effect. Except as provided in Rule 15 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. 16 If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be 17 dismissed over the defendant’s objection only if the counterclaim can remain pending for independent 18 adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. 19 20 Regarding defendants Waterloo-CA Inc. and International Waffle Café, the undersigned 21 finds that plaintiff’s complaint should be dismissed with prejudice under Rule 41(a)(1)(A)(i) 22 considering neither party filed an answer or a motion for summary judgment. 23 Regarding Angelina’s Spaghetti House, the undersigned finds that, in light of its non- 24 opposition to plaintiff’s request for dismissal with prejudice (ECF No. 13), plaintiff’s complaint 25 should be dismissed with prejudice under Rule 41(a)(1)(A)(ii) and alternatively under Rule 26 41(a)(2) on terms that the court considers proper. Namely, that this defendant has stipulated and 27 does not oppose its dismissal from this case. 28 /// 1 For these reasons, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff's motion to dismiss (ECF No. 9) be GRANTED; 3 2. Plaintiff's complaint be dismissed as to all defendants with prejudice pursuant to 4 Federal Rule of Civil Procedure 41(a); and 5 3. The Clerk of Court be directed to close this case. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 || after being served with these findings and recommendations, plaintiff may file written objections 9 | with the court and serve a copy on all parties. Such a document should be captioned “Objections 10 | to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 || objections within the specified time may waive the right to appeal the District Court’s order. 12 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 13 | Dated: February 4, 2020 CA rd ht / {o— 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 15 velez1732.f&rs_dismissal 18 19 20 21 22 23 24 25 26 27 28