Aussieker v. Mortgage Bank of California, 2:19-cv-00561-MCE-KJN PS. (2019)
Court: District Court, E.D. California
Number: infdco20190625a78
Visitors: 5
Filed: Jun. 21, 2019
Latest Update: Jun. 21, 2019
Summary: ORDER DENYING 41(a)(1)(A)(i) DISMISSAL WITHOUT PREJUDICE KENDALL J. NEWMAN , Magistrate Judge . Plaintiff is proceeding without counsel in an action brought under 47 U.S.C. 227 (the "TCPA") against Defendant Mortgage Bank of California. (ECF No. 1.) Plaintiff filed a "request to dismiss" pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. (ECF No. 18.) Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action without a court order by fi
Summary: ORDER DENYING 41(a)(1)(A)(i) DISMISSAL WITHOUT PREJUDICE KENDALL J. NEWMAN , Magistrate Judge . Plaintiff is proceeding without counsel in an action brought under 47 U.S.C. 227 (the "TCPA") against Defendant Mortgage Bank of California. (ECF No. 1.) Plaintiff filed a "request to dismiss" pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. (ECF No. 18.) Subject to exceptions not applicable here, a plaintiff may voluntarily dismiss an action without a court order by fil..
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ORDER DENYING 41(a)(1)(A)(i) DISMISSAL WITHOUT PREJUDICE
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is proceeding without counsel in an action brought under 47 U.S.C. § 227 (the "TCPA") against Defendant Mortgage Bank of California. (ECF No. 1.) Plaintiff filed a "request to dismiss" pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. (ECF No. 18.)
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.
Fed. R. Civ. P. 41(a)(1)(A).
Before Plaintiff filed the notice of voluntary dismissal, Defendant filed an answer. (ECF No. 12.) Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, Defendant may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii).1 Should Defendant decline to stipulate, the undersigned only has the authority to submit findings and recommendations to the assigned district judge recommending dismissal of this action—and only after finding that the terms are proper. Fed. R. Civ. P. 41(a)(2).
Accordingly, it is ORDERED that within seven days Defendant shall file and serve a stipulation to the dismissal of this action pursuant to Rule 41(a)(1)(A)(ii), or otherwise respond to Plaintiff's motion to dismiss.
FootNotes
1. In the event defendant so stipulates, the court will construe the parties' filings as a notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(ii).
Source: Leagle
