Sierra Construction & Excavation, Inc. v. Endurance Assurance Corporation ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SIERRA CONSTRUCTION & Case No. 1:23-cv-01139-SAB EXCAVATION, INC., 12 ORDER DENYING NOTICE OF Plaintiff, VOLUNTARY DISMISSAL AS 13 PROCEDURALLY IMPROPER v. 14 (ECF No. 13) ENDURANCE ASSURANCE 15 CORPORATION, FOURTEEN DAY DEADLINE 16 Defendant. 17 18 Plaintiff filed this action on August 1, 2023. (ECF No. 1.) On September 15, 2023, 19 Defendant filed an answer to the complaint. (ECF No. 7.) On December 18, 2023, Plaintiff filed 20 a notice of dismissal requesting the Court dismissed the action with prejudice. (ECF No. 13.) 21 The filing does not cite any Federal Rule of Civil Procedure, is only signed by Plaintiff. 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, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action 27 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). 7 Plaintiff's notice of voluntary dismissal is defective because it is not a signed stipulation 8 | by all parties who have appeared and it is not a motion under Rule 41(a)(2). If Plaintiff wishes to 9 | dismiss this action, they are required to comply with the procedures set forth in Rule 41 by filing 10 | a stipulation that complies with Rule 41(a)(1)(A)Gi) or a motion under Rule 41(a)(2). 11 Accordingly, Plaintiffs notice of voluntary dismissal is HEREBY DENIED without 12 | prejudice as procedurally improper. Plaintiff shall file a request for dismissal that complies with 13 | Rule 41 within fourteen (14) days from the date of entry of this order. 14 15 IT IS SO ORDERED. FA. ee 16 | Dated: _ December 19, 2023 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28