BMO Harris Bank N.A. v. Thomsons Logistics Inc ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BMO HARRIS BANK N.A., Case No. 1:21-cv-00635-NONE-SAB 12 Plaintiff, ORDER DISREGARDING REQUEST FOR VOLUNTARY DISMISSAL 13 v. (ECF No. 8) 14 THOMSONS LOGISTICS INC., et al., FOURTEEN DAY DEADLINE 15 Defendants. 16 17 Plaintiff BMO Harris Bank N.A. filed this action against Defendants Thomsons Logistics 18 Inc. and Rohan Pankkal on April 15, 2021 alleging breach of contract. (ECF No. 1.) On May 19 10, 2021, Defendants filed an answer to the complaint. (ECF No. 7.) On July 7, 2021, Plaintiff 20 filed a notice of voluntary dismissal dismissing the action without prejudice pursuant to Fed. R. 21 Civ. P. 41(a)(2). (ECF No. 8.) 22 Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an 23 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 24 motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 25 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 26 1997)). Here, Defendants have filed an answer, so Plaintiff cannot voluntarily dismiss this 27 action pursuant to Rule 41(a)(1)(A)(i). Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an 1 | action without a court order by filing a stipulation of dismissal signed by all parties who have 2 | appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). 3 A party may also dismiss an action by filing a motion requesting the Court to dismiss the 4 | action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is 5 | addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. 6 | Inc., 679 F.2d 143, 145 (9th Cir. 1982). Here, while Plaintiff requests dismissal, there has been 7 |no noticed motion. See Local Rule 230. Plaintiff is advised that since this matter seeks to 8 | dispose of the action, a motion is required to be noticed before the district judge assigned to this 9 | action. 10 Plaintiff's request for voluntary dismissal is defective under Rule 41(a)(1) because it is 11 | not a signed stipulation by all parties who have appeared and it is not a motion under Rule 12 | 41(a)(2). If Plaintiff wishes to dismiss this action, it is required to comply with the procedures 13 | set forth in Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)G) or a motion 14 | under Rule 41(a)(2). 15 Accordingly, Plaintiffs notice of voluntary dismissal is HEREBY DISREGARDED. 16 | Plaintiff shall file a request for dismissal that complies with Rule 41 within fourteen (14) days 17 | from the date of entry of this order. 18 19 IT IS SO ORDERED. DAM Le 20 | Dated: _July 7, 2021 _ ee UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28