Filed: Jun. 03, 2014
Latest Update: Jun. 03, 2014
Summary: ORDER EDMUND F. BRENNAN, Magistrate Judge. Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. 2254. He has filed a notice of voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 20; see also Rule 12, Rules Governing Section 2254 Cases (to the extent they are not inconsistent with any statutory provisions or the Rules Governing Section 2254 Cases, Federal Rules of Civil Procedure may be appli
Summary: ORDER EDMUND F. BRENNAN, Magistrate Judge. Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. 2254. He has filed a notice of voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 20; see also Rule 12, Rules Governing Section 2254 Cases (to the extent they are not inconsistent with any statutory provisions or the Rules Governing Section 2254 Cases, Federal Rules of Civil Procedure may be applie..
More
ORDER
EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has filed a notice of voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. ECF No. 20; see also Rule 12, Rules Governing Section 2254 Cases (to the extent they are not inconsistent with any statutory provisions or the Rules Governing Section 2254 Cases, Federal Rules of Civil Procedure may be applied to habeas proceedings).
Subject to exceptions not applicable here, a petitioner may voluntarily dismiss an action without prejudice, and 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 petitioner filed the notice of voluntary dismissal, respondent filed an answer to the petition. ECF No. 13. Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, respondent may choose to stipulate to dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii). Should respondent decline to stipulate as such, the court may dismiss this action based upon petitioner's request, "on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). The court may also deny petitioner's request for dismissal pursuant to Rule 41(a), and submit the pending findings and recommendations (ECF No. 19), which recommend denial of the petition on the merits, to the district judge.
Accordingly, it is ORDERED that within 14 days of the date of this order, respondent shall file and serve a document stipulating to dismissal of this action without prejudice pursuant to Rule 41(a)(1)(A)(ii),1 or otherwise respond to petitioner's motion to dismiss.
