Her v. Aviva Life & Annuity Co.

Full title: MALEE HER, et al., Plaintiffs, v. AVIVA LIFE AND ANNUITY CO., Defendant…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jan 19, 2016

Case No. 1:14-cv-01453-SKO (E.D. Cal. Jan. 19, 2016)

Opinion

Case No. 1:14-cv-01453-SKO

01-19-2016

MALEE HER, et al., Plaintiffs, v. AVIVA LIFE AND ANNUITY CO., Defendant, AVIVA LIFE AND ANNUNITY CO., Counter Claimant, v. MALEE HER and TUNG HER-MOUA, Counter Defendants.

Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

ORDER DIRECTING CLERK OF COURT TO CLOSE THIS CASE

On January 15, 2016, the parties filed a stipulation for dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii) that this action be dismissed with prejudice, including all counterclaims, and that each party shall bear their own fees and costs.

In relevant part, Rule 41(a)(1)(A) provides as follows:

[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)(1)(A). Rule 41 thus allows the parties to dismiss an action voluntarily, after service of an answer, by filing a written stipulation to dismiss signed by all of the parties who have appeared, although an oral stipulation in open court will also suffice. See Eitel v. McCool, 782 F.2d 1470, 1472-73 (9th Cir. 1986).

Once the stipulation between the parties who have appeared is properly filed or made in open court, no order of the court is necessary to effectuate dismissal. Caselaw concerning stipulated dismissals under Rule 41(a)(1)(A)(ii) is clear that the entry of such a stipulation of dismissal is effective automatically and does not require judicial approval. Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999). "The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice," and the dismissal "automatically terminates the action as to the defendants who are the subjects of the notice." Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).

Because the parties have filed a stipulation for dismissal of this case with prejudice under Rule 41(a)(1)(A)(ii) that is signed by all parties who have made an appearance, this case has terminated. Fed. R. Civ. P. 41(a)(1)(A)(ii).

Accordingly IT IS HEREBY ORDERED that the Clerk of the Court is to close this case. IT IS SO ORDERED. Dated: January 19 , 2016

/s/ Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE