Opinion
1:21-cv-00990-ADA-SAB (PC)
07-06-2023
M MORRIS ROBINSON, Plaintiff, v. J. FARMBROUGH, et al., Defendants.
ORDER DIRECTING DEFENDANT RHOADES TO FILE A RESPONSE TO PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL WITHIN SEVEN DAYS (ECF NO. 64.)
Plaintiff Morris Robinson, is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's notice of voluntary dismissal of Defendant Rhoades pursuant to Federal Rule of Civil Procedure 41(a), filed July 5, 2023. (ECF No. 64.)
Subject to exceptions not applicable here, a plaintiff may voluntarily 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). Before Plaintiff filed the notice of voluntary dismissal, Defendant Rhoades filed an answer and motion for summary judgment. (ECF Nos. 31, 59.) Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, Defendant may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii). Should Defendant decline to stipulate, the Court may dismiss this action based upon plaintiffs request, “on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2).
Accordingly, it is ORDERED that Defendant Rhoades shall have seven days to file and serve a stipulation to the dismissal of this action pursuant to Rule 41(a)(1)(A)(ii), or to otherwise respond to Plaintiff's motion to dismiss.
In the event Defendant so stipulates, the Court will construe the parties' filings as a stipulation for voluntary dismissal pursuant to Rule 41(a)(1)(A)(ii).
IT IS SO ORDERED.