Opinion
Case No. 1:18-cv-00504-LJO-SAB
12-26-2019
CITY OF FRESNO, Plaintiff, v. TOKIO MARINE SPECIALTY INSURANCE COMPANY, Defendant.
ORDER DISREGARDING NOTICE OF VOLUNTARY DISMISSAL (ECF No. 25)
On April 12, 2018, Defendant Tokio Marine Specialty Insurance Company removed this action from Fresno County Superior Court to the Eastern District. (ECF No. 1.) An answer was filed on August 15, 2018, following the denial of Defendant's motion to dismiss. (ECF Nos. 11, 12.) On December 23, 2019, Plaintiff City of Fresno filed a notice of voluntary dismissal of the action. (EC No. 25.)
Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, '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)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action pursuant to Rule 41(a)(1)(A)(i).
Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a "plaintiff may dismiss an action without a court order by filing a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. P. 41(a)(1)(A)(ii).
A party may also dismiss an action by filing a motion requesting the Court to dismiss the action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982).
Plaintiff's notice of voluntary dismissal is defective under Rule 41(a) because it is not a signed stipulation by all parties who have appeared and it is not a motion under Rule 41(a)(2). If Plaintiff wishes to dismiss this action, Plaintiff is required to comply with the procedures set forth in Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)(ii) or a motion under Rule 41(a)(2).
Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED. IT IS SO ORDERED. Dated: December 26 , 2019
/s/_________
UNITED STATES MAGISTRATE JUDGE