Opinion
No. CIV S-05-1008 FCD EFB P.
March 8, 2007
ORDER
Plaintiff is a prisoner without counsel seeking relief for civil rights violations. See 42 U.S.C. § 1983. The parties have submitted a stipulation for voluntary dismissal. See Fed.R.Civ.P. 41(a)(1)(ii). However, there is a discrepancy between the language used in the stipulation and the language used in the caption and the proposed order as to whether the dismissal is with, or without prejudice. Accordingly, a corrected stipulation and order must be submitted to resolve the discrepancy. Moreover, the revised stipulation and order shall correct the signature line on the order to remove Magistrate Judge Nowinski and identify the assigned District Judge.
The relevant portion of Rule 41 states that an action may voluntarily dismissed "by filing a stipulation of dismissal signed by all parties who have appeared in the action." Fed.R.Civ.P. 41(a)(1)(ii). Furthermore, "Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim." Id. Here, the caption of the stipulation says, "Stipulation for Voluntary Dismissal With Out [sic] Prejudice." However, the body of the stipulation says that the action "shall be dismissed with prejudice as to all Defendants." The typewritten text in the proposed order clause provided for dismissal with prejudice. However, that language was lined out and the words "without prejudice" were handwritten above it. There is also a handwritten addition stating that CDCR will waive costs and attorney's fees. Below that text are the signatures of plaintiff and of counsel for defendants. While it appears that counsel for defendants changed the caption based on an agreement to dismiss without prejudice, and simply neglected to change the language of the actual stipulation, the court is not inclined to infer such intent with respect to what appears to be a settlement agreement. The parties must clarify their intent.
Accordingly, it is ORDERED that within 20 days of the date of this order, the parties shall submit for the signature of the district judge assigned to this matter a corrected stipulation that makes clear whether the dismissal is with or without prejudice.