Opinion
CASE NO. 1:15-CV-950 AWI BAM
08-11-2015
HERTA CARTAGENA, Plaintiff v. RICHARD K. ELIA, Defendant
ORDER CLOSING CASE IN LIGHT OF UNOPPOSED REQUEST TO DISMISS CASE WITH PREJUDICE
(Doc. No. 6)
On July 21, 2015, Defendant filed an answer. See Doc. No. 4. On August 4, 2015, Plaintiff filed a notice of settlement and a request to dismiss this case with prejudice. See Doc. No. 6. The notice is signed only by Plaintiff, and although no authority is cited, the Court views the request as being made under Federal Rule of Civil Procedure 41(a)(2). As of the date of this order, Defendant has not responded to the requested dismissal.
If Defendant had signed the requested dismissal, or if Defendant had not filed an answer, then Plaintiff's requested dismissal would have automatically terminated this case. See Fed. R. Civ. P. 41(a)(1)(A). However, because Defendant did file an answer and did not sign the requested dismissal, Rule 41(a)(1) does not apply. See Fed. R. Civ. P. 41(a); Wilson, 111 F.3d at 692. --------
Federal Rule of Civil Procedure 41(a) "allows plaintiffs voluntarily to dismiss some or all of their claims against some or all defendants." Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer, but has not signed a stipulation to dismiss, a plaintiff's voluntary dismissal must be effected through Federal Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent part: "Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. Pro. 41(a)(2). "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).
Here, Defendant has filed an answer without counterclaims, and has not objected or responded to Plaintiff's requested dismissal. Given the time that has now passed, the Court will view Plaintiff's request as being unopposed. The Court sees no reason to deny Plaintiff's requested dismissal with prejudice, and therefore will grant Plaintiff's request and close this case. See Fed. R. Civ. Pro. 41(a)(2); Smith, 263 F.3d at 975.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Rule 41(a)(2) request for dismissal with prejudice (Doc. No. 6) is GRANTED; andIT IS SO ORDERED. Dated: August 11, 2015
2. The Clerk shall CLOSE this case.
/s/_________
SENIOR DISTRICT JUDGE