Opinion
CASE NO. C13-5422 RJB-JRC
04-11-2014
JIMI JAMES HAMILTON, Plaintiff, v. SCOTT FRAKES et al., Defendants.
REPORT AND RECOMMENDATION
NOTED FOR:
MAY 2, 2014
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and Magistrate Judge Rules MJR3 and MJR4.
Plaintiff asks the Court for voluntary dismissal of this action without prejudice (Dkt. 39). Defendants do not oppose the motion (Dkt. 40). This is plaintiff's second motion to voluntarily dismiss the action and plaintiff states "I will not change my mind as I did previously." (Dkt. 39). The Court recommends dismissing this action without prejudice and denial of all pending motions.
Plaintiff must seek leave of Court to dismiss the action because an answer has been filed (Dkt. 29). Fed. R. Civ. P. 41 provides in part:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may 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.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
Because defendants have filed an answer, plaintiff's motion is an unopposed voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2). The Court recommends granting plaintiff's motion.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on May 2. 2014, as noted in the caption.
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J. Richard Creatura
United States Magistrate Judge