Opinion
No. 1:16-cv-01029-DAD-JLT
10-04-2016
MCKAYLA HOLLINS, an individual, Plaintiff, v. FORD MOTOR COMPANY, a Delaware corporation, CARMAX AUTO SUPERSTORES CALIFORNIA, LLC, a Virginia limited liability company, and DOES 1-30, inclusive, Defendants.
ORDER DIRECTING THE CLERK OF THE COURT TO TERMINATE DEFENDANT CARMAX AUTO SUPERSTORES CALIFORNIA, LLC
(Doc. No. 15)
On October 3, 2016, plaintiff filed a notice of voluntary dismissal of defendant CarMax Auto Superstores California, LLC without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. No. 15.) Under Rule 41(a), a plaintiff may dismiss an action without a court order if he or she files "a notice or dismissal before the opposing party serves either an answer or a motion for summary judgment" or "a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. Pro. 41(a)(1)(A)(i)-(ii). Here, defendant CarMax Auto Superstores California, LLC has not filed an answer or a motion for summary judgment, but has filed a motion to dismiss. (See Doc. No. 10.) "Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1)." Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Miller v. Reddin, 422 F.2d 1264, 1265 (9th Cir. 1970)). In light of this, defendant CarMax Auto Superstores California, LLC has been dismissed without prejudice. See Fed. R. Civ. P. 41(a)(1)(A)(i); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).
Accordingly, the court directs the Clerk of Court to terminate defendant CarMax Auto Superstores California, LLC. IT IS SO ORDERED. Dated: October 4 , 2016
/s/_________
UNITED STATES DISTRICT JUDGE