Opinion
CASE NO. 3:18-cv-05108-RJB-DWC
09-13-2018
REPORT AND RECOMMENDATION Noting Date: September 13, 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' Stipulated Motion to Dismiss Defendant Edwin Hoskins ("Stipulated Motion"). Dkt. 13. After review of the record, the undersigned magistrate judge recommends Defendant Hoskins be dismissed from this case without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff Bill Joe Lane initiated this lawsuit on February 12, 2018. Dkt. 1. The Court directed service of the Complaint on March 19, 2018, Dkt. 5, and the Defendants filed an Answer on May 17, 2018, Dkt. 11. The Court then filed a Pretrial Scheduling Order. Dkt. 12. The Parties filed their Stipulated Motion on September 12, 2018. Dkt. 13
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 a complaint, the action may only be dismissed by a 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).
All Defendant have filed an Answer in this case. However, Plaintiff and counsel for Defendants have signed a stipulated dismissal of Defendant Hoskins. See Dkt. 13. As the Parties have signed a stipulation of dismissal, the Court finds the Stipulated Motion (Dkt. 13) should be granted pursuant to Rule 41(a)(1).
CONCLUSION
For the foregoing reasons, the Court recommends Defendant Hoskins be dismissed without prejudice and without costs or fees to any party.
Given the facts and the Parties' stipulation, the Court recommends the District Judge immediately approve this Report and Recommendation.
Dated this 13th day of September, 2018.
/s/_________
David W. Christel
United States Magistrate Judge