Opinion
Case No. 1:13-cv-00597- SAB
05-16-2016
RICHARD P. BERMAN, Plaintiff, v. JOHN REYNOLDS, et al., Defendants.
ORDER VACATING MAY 27, 2016 HEARING ON MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION TO DISMISS WITHOUT PREJUDICE JUDICIAL COUNCIL OF CALIFORNIA (ECF Nos. 82, 84)
Plaintiff Richard Berman filed this action in Fresno County Superior Court on March 26, 2013. (ECF No. 1-1 at 5-24.) On April 23, 2013, Defendants John Reynolds, George Bertsch, Tracy Sink, Margaret Mims, and County of Fresno removed the action to the Eastern District of California. (ECF No. 1.) On May 29, 2013, an order issued granting Defendants Bertsch, Mims and Reynolds' motion to dismiss and judgment was entered in favor of these defendants. (ECF Nos. 11, 12.) On May 11, 2016, in response to an order to show cause, Plaintiff filed a motion to dismiss Defendant Judicial Council of California from this action. (ECF No. 82.) On May 13, 2016, Defendants Sink and County of Fresno filed a statement of non-opposition to the motion to dismiss.
The Court finds this motion suitable for decision on the pleadings and the hearing set for May 27, 2016 shall be vacated. However, the May 27, 2016 hearing on the parties' motions in limine shall remain on calendar.
Rule 41 of the Federal Rules of Civil Procedure provides that a "plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. P. 41(a). The Judicial Council of California has not appeared in this action and the Court construes Defendants Sink and County of Fresno's statement of non-opposition as a stipulation to dismiss the Judicial Council of California from this action.
"[U]nder Rule 41(a)(1)(A)(i), 'a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.' " Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). "[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can't complain, and the district court lacks jurisdiction to do anything about it." Commercial Space Mgmt. Co., Inc., 193 F.3d at 1078.
Accordingly, IT IS HEREBY ORDERED that:
1. The hearing set for May 27, 2016 on Plaintiff's motion to dismiss is vacated;IT IS SO ORDERED. Dated: May 16 , 2016
2. Plaintiff's motion to dismiss the Judicial Council of California from this action is granted; and
3. The Judicial Council of California is dismissed from this action without prejudice.
/s/_________
UNITED STATES MAGISTRATE JUDGE