Opinion
CASE NO. 3:17-CV-05183-RJB-DWC
07-10-2018
PHILLIP GOODWIN, Plaintiff, v. JOHN HAMIL, Defendant.
REPORT AND RECOMMENDATION Noting Date: July 10, 2018
The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Presently before the Court is the parties' Notice of Stipulated Dismissal of Complaint. Dkt. 44. After review of the record, the undersigned recommends the Complaint and all remaining claims be dismissed without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
I. Background
On March 13, 2017, Plaintiff Phillip Goodwin initiated this lawsuit. Dkt. 1. The Court directed service of the Complaint and, on September 11, 2017, the sole remaining Defendant, John Hamil, filed an Answer to the Complaint. Dkt. 5, 32; see also Dkt. 40. Defendant Hamil filed a Motion for Summary Judgment on June 8, 2018. Dkt. 41. On July 6, 2018, the parties filed the Stipulated Notice. Dkt. 44.
II. Discussion
Federal Rule of Civil Procedure 41 sets forth the circumstances under which an action may be dismissed. Under Rule 41(a)(1), an action may be voluntarily dismissed without prejudice by the plaintiff if the plaintiff files a notice of dismissal before the defendant files an answer or summary judgment motion and the plaintiff has not previously dismissed an action "based on or including the same claim." Fed.R.Civ.P. 41(a)(1); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Once the defendant has responded to the complaint, the action may only be dismissed by stipulation of dismissal signed by all parties who have appeared or "by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(1), (2).
Defendant Hamil has filed both an Answer and Motion for Summary Judgment in this case. However, Plaintiff and counsel for Defendant Hamil have signed a stipulated dismissal. See Dkt. 44. As the parties have signed a stipulation of dismissal, the Court finds the Stipulated Notice (Dkt. 44) should be granted pursuant to Rule 41(a)(1).
III. Conclusion
For the foregoing reasons, the Court recommends the Complaint and all remaining claims be dismissed without prejudice. The Court also recommends all pending motions be found to be moot.
Given the facts and the parties' stipulation, the Court recommends the District Judge immediately approve this Report and Recommendation.
Dated this 10th day of July, 2018.
/s/_________
David W. Christel
United States Magistrate Judge