Opinion
CASE NO. 3:17-cv-05591-BHS-JRC
10-31-2018
DEVIN A MARTIN, Plaintiff, v. STEPHEN SINCLAIR, et al., Defendants.
REPORT AND RECOMMENDATION NOTED FOR: October 31, 2018
This 42 U.S.C. § 1983 civil rights matter has been referred to Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4. Pending before the Court is the parties' stipulation to dismiss this case with prejudice. Dkt. 36.
Federal Rule of Civil Procedure 41 provides the circumstances under which an action may be dismissed. Under Rule 41(a)(1), an action may be voluntarily dismissed by the plaintiff if the plaintiff files notice of dismissal before the defendant files an answer or other responsive pleading. Fed. R. Civ. P. 42(a)(1). Once a defendant has responded, the action may only be dismissed by stipulation of dismissal signed by all parties or by court order. Fed. R. Civ. P. 41(a)(1), (2).
Here, defendants have filed an answer and so voluntary dismissal must be by stipulation or court order. The parties have filed a stipulation to dismiss the case with prejudice. Dkt. 36. They have included an affidavit detailing the settlement agreement between the parties and the stipulation is signed both by plaintiff and counsel for defendants. Id.; Dkt. 36-1. As the parties have signed the stipulation for dismissal with prejudice, the Court finds that the stipulated motion for dismissal (Dkt. 36) should be granted pursuant to Rule 41(a)(1).
Therefore, pursuant to the stipulation, the Court recommends that this action be dismissed with prejudice.
Given the parties' stipulation, the Court recommends the Honorable Benjamin H. Settle immediately approve this report and recommendation.
Dated this 31st day of October, 2018.
/s/_________
J. Richard Creatura
United States Magistrate Judge