Opinion
Case No. 1:17-cv-00069-LJO-BAM
08-04-2017
DIERDRE JACQUOT AND ROBERT JACQUOT, Plaintiffs, v. THE PEP BOYS MANNY MOE & JACK OF CALIFORNIA, Defendant.
ORDER CLOSING CASE BASED ON UNOPPOSED REQUEST TO DISMISS
(ECF No. 15)
Plaintiffs Diedre Jacquot and Robert Jacquot initiated this civil action on January 17, 2017. Defendant The Pep Boys Manny Moe & Jack of California answered the complaint on March 21, 2017.
On July 25, 2017, Plaintiff filed a notice requesting voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 15.) On July 31, 2017, Defendant filed a statement of non-opposition. (ECF No. 17.)
"[U]nder Rule 41(a)(1)(i), 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) (quotation and citation omitted). "Once the defendant serves an answer or a motion for summary judgment, however, the plaintiff may no longer voluntarily dismiss under Rule 41(a)(1), but must file a motion for voluntary dismissal under Rule 41(a)(2)." Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Pursuant to Rule 41(a)(2), "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).
Here, Defendant served an answer to the complaint, and thus dismissal under Rule 41(a)(1)(A) is not available. Nonetheless, Defendant has not opposed Plaintiff's request and has consented to voluntary dismissal. Based on Defendant's non-opposition and consent, the Court finds no reason to deny Plaintiff's request for dismissal under Rule 41(a)(2), and this action shall be closed.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for voluntary dismissal under Rule 41(a)(2) is GRANTED;
2. All pending motions, if any, are TERMINATED; and
3. The Clerk of the Court is directed to CLOSE this case.
This terminates the action in its entirety. IT IS SO ORDERED.
Dated: August 4 , 2017
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE