Opinion
CV-22-08104-PCT-JJT
07-29-2022
Melissa L. Cook, Plaintiff, v. Peak Endeavors LLC, et al., Defendants.
ORDER
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
At issue is Plaintiff/Judgment Creditor/Garnishor Melissa L. Cook's Notice of Lodging Form of Order (Doc. 16).
As the Court stated in its prior Order (Doc. 13), this is a garnishment action brought by Plaintiff/Garnishor Melissa L. Cook, and after proper removal by Garnishee Aegis Insurance Company, the Federal Rules of Civil Procedure apply to this action. The Writ of Garnishment (Doc. 1-3) and Answer thereto (Doc. 4) are presently the operative pleadings. In the prior Order (Doc. 13), the Court ordered Plaintiff to file an amended pleading to clarify the claims in this matter. Instead, Plaintiff filed a Notice of Lodging Form of Order, in which Plaintiff seems to state that, upon withdrawal of her previously filed Response (Doc. 12) to Aegis's Objection to Plaintiff's request for a hearing on her objection to Aegis's Answer, this action is somehow over. (Docs. 16, 16-1.)
To begin with, Plaintiff's Response brief (Doc. 12) did not trigger this action; Plaintiff's Writ of Garnishment (Doc. 1-3) did. Thus Plaintiff's withdrawal of the Response brief did not terminate the action. Next, the filing of a “Form of Order” is not contemplated by the Federal Rules of Civil Procedure as a way for a plaintiff to voluntarily dismiss an action pending before this Court. Rule 41 provides that a plaintiff may unilaterally voluntarily dismiss an action only when no answer or motion for summary judgment has been filed. Fed.R.Civ.P. 41(a)(1)(A)(i). Otherwise, in an instance such as this where an Answer has been filed (Doc. 4), a plaintiff can only request dismissal of an action by filing “a stipulation signed by all parties who have appeared.” Fed.R.Civ.P. 41(a)(1)(A)(ii).
As a result, this action remains pending, and Plaintiff has not timely filed the amended pleading as required by the Court. (Doc. 13.) If the parties have agreed to dismissal of this action, they may file a stipulation to that effect. Otherwise, Plaintiff's failure to file an amended pleading as ordered by the Court will result in a dismissal for failure to prosecute this action and judgment in favor of Garnishee Aegis Insurance Company.
IT IS THEREFORE ORDERED denying Plaintiff/Judgment Creditor/Garnishor Melissa L. Cook's request in the Notice of Lodging Form of Order (Doc. 16) for dismissal of this action.
IT IS FURTHER ORDERED that, by August 12, 2022, Plaintiff shall either file an amended pleading, as previously ordered by the Court (Doc. 13), or a stipulation of dismissal signed by all parties under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). If Plaintiff fails to make such a filing, Garnishee Aegis Insurance Company may seek judgment in its favor for Plaintiff's failure to prosecute this action.