Sanders v. County of Kern ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TROY SANDERS, Case No. 1:22-cv-01029-CDB 12 Petitioner, ORDER DIRECTING THE CLERK OF COURT TO CLOSE THIS CASE 13 v. PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(i) 14 COUNTY OF KERN, ET AL., (ECF No. 9) 15 Defendants. 16 17 Plaintiff filed his complaint on August 15, 2022. (ECF No. 1.) On October 27, 2022, the 18 Court issued an Order to Show Cause as to why sanctions should not issue for Plaintiff’s failure 19 to prosecute this action and serve the summons and complaint in a timely fashion. (ECF No. 7.) 20 In his response, Counsel for Plaintiff declared that he intended to file a First Amended Complaint 21 but could not do so as one of his attorneys was sick and needed additional time to prepare. 22 Counsel for Plaintiff further attested that if the Court was disinclined to grant his request, then, he 23 alternatively requested that this action be dismissed without prejudice. (ECF No. 8) The Court 24 found a showing of good cause and ordered Plaintiff to file an amended complaint no later than 25 December 9, 2022. (ECF No. 9) 26 After the expiration of the Court-ordered time to file an amended complaint, on December 27 12, 2022, Madelyn Viramontes, a representative of Counsel for Plaintiff’s law firm transmitted an ex parte email communication to the Courtroom Deputy Clerk in which she explained Counsel 1 | was unable to comply with the Court-ordered filing deadline due to illness. The representative 2 | also stated in her email to the Court that Counsel for Plaintiff intended to dismiss this action 3 | without prejudice. 4 A plaintiff may dismiss an action pursuant to Rule 41(a)(1)(A)Q@), Fed. R. Civ. P., without 5 | acourt order by filing a request before the opposing party files a responsive pleading. Here, no 6 | defendant has answered or appeared and, accordingly, dismissal is proper. The Court construes 7 | the email of Ms. Viramontes, attached hereto as Exhibit A, as Plaintiff’s notice of dismissal. 8 | Once a dismissal under Rule 41(a)(1) is properly filed, no order of the court is necessary to 9 | effectuate dismissal; the dismissal is effective automatically. See Com. Space Mgmt. Co. v. 10 | Boeing Co., 193 F.3d 1074, 1078 (9th Cir. 1999). 11 The Court DIRECTS the Clerk of the Court to close this case and to terminate the 12 | Scheduling Conference. (ECF Nos. 7). 13 4 IT IS SO ORDERED. 15 | Dated: _December 12, 2022 _ [wr DR~ 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 nen nee een nnn nnn nn en nn enn nnn nn nn nen I ED OE 1 EXHIBIT A 2 3 4 From: Madelyn Viramontes Sent: Monday, December 12, 2022 8:59 AM 5 To: Susan Hall Cc: Brian Dunn Timaiah Smith 6 | Subject: 1:22-cv-01029-CDB:Amended Complaint Re OSC 7 | CAUTION - EXTERNAL: 8 9 Ms. Hall, 10 Goodmorning. Mr. Dunn has been out of the office and was not able to file the Amended Complaint due by December 9th Re: Plaintiffs OSC response on 10/27/2022. 11 When Mr. Dunn is well, he plans to move to have the Complaint dismissed without prejudice. 12 Thanks. 13 14 | Madelyn Viramontes 1s Legal Assistant to Brian T. Dunn, Esq., Timaiah N. Smith, MBA, Esq., and 16 | Edward M. Lyman IIT, Esq. 17 | "THE COCHRAN FIRM - CALIFORNIA 1g | 4929 Wilshire Boulevard, Suite 1010 Los Angeles, CA 90010 19 | (323) 435-8205 Telephone 0 (323) 282-5280 Facsimile Email 21 WEB: www.cochranfirmlaw.com 22 CONFIDENTIALITY NOTICE: The information contained in this electronic mail message is private and confidential. It is intended 23 only for the use of the individual or entity to whom it is addressed. The information may be privileged, proprietary and exempt from disclosure under applicable federal, state or other law. Any recipient of this electronic mail message other than the IA intended recipient is hereby notified not to disclose, distribute or copy this electronic mail message, or take or refrain from taking any action in reliance on this message. If this message has been transmitted in error and you are not the intended 25 recipient, please delete and destroy all copies of this communication at once, and notify the sender by return email. 2% ih Please consider the environment before printing this email. 27 28