Opinion
Case No.: 16-cv-01647-DAD-SKO
08-08-2017
VERRAGIO, LTD, Plaintiff, v. MALAKAN DIAMOND CO., Defendant. MALAKAN DIAMOND CO., Counterclaimant/Cross-Claimant, v. VERRAGIO, LTD.; AE JEWELERS OF APPLETON, LLC.; and DOES 1 to 10, inclusive, Counterclaim and Cross-Claim Defendants.
ORDER DISMISSING CROSS-DEFENDANT AE JEWELERS OF APPLETON, LLC WITHOUT PREJUDICE
(Doc. 55)
On August 7, 2017, Cross-claimant Malakan Diamond Co. filed a notice of voluntary dismissal for Cross-defendant AE Jewelers of Appleton, LLC, without prejudice. (Doc. 55.) Cross-claimant's notice is provided under Federal Rule of Civil Procedure 41(a)(1)(A)(i).
The Ninth Circuit has explained:
Under Rule 41(a)(1), 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. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id.
The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id.Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).
No answers to the cross-complaint and no motions for summary judgment have been filed in this case, and no such answers or motions for summary judgment appear to have been served. See Wilson, 111 F.3d at 692.
Because Cross-claimant filed a notice of dismissal of this case without prejudice under Rule 41(a)(1)(A)(i), this case has automatically terminated as to Cross-defendant AE Jewelers of Appleton, LLC. Fed. R. Civ. P. 41(a)(1)(A)(i). Accordingly, the Clerk of the Court is directed to TERMINATE Cross-defendant AE Jewelers of Appleton, LLC. IT IS SO ORDERED. Dated: August 8 , 2017
/s/ Sheila K . Oberto
UNITED STATES MAGISTRATE JUDGE