Opinion
No. CIV S-07-0750 LKK EFB P.
October 23, 2008
ORDER
Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Currently pending is a document plaintiff filed on October 20, 2008, in which plaintiff appears to express an intent to abandon this action. As explained below, the court construes this as a notice of voluntary dismissal and provides the opportunity for defendants to stipulate to dismissal without prejudice.
The Federal Rules of Civil Procedure govern voluntary dismissal. Subject to exceptions not applicable here, a plaintiff may voluntarily 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.
On October 10, 2008, the court granted defendants' motion to set aside their default and permitted them to file an answer in this action. The court then issued a discovery and scheduling order. On October 20, 2008, plaintiff filed a document expressing his dissatisfaction with the court's order setting aside the defendants' default, concluding, "plaintiff is done with this action. Plaintiff will not answer." The court construes this as an expression of intent voluntarily to dismiss this action. However, since defendants have answered, plaintiff cannot voluntarily dismiss it without the defendants' consent. Thus, the defendants must have an opportunity to consent to the dismissal.
Accordingly, it is ORDERED that within 15 days of the date of this order, defendants may file and serve a document consenting to dismissal of this action without prejudice pursuant to Rule 41(a)(1)(A)(ii). Once defendants file their consent, the court will construe the consent and the instant filing together as a stipulation for voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).