Avalos v. Wa Re, Inc.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GEORGE AVALOS, an individual, Case No. 1:20-cv-01572-NONE-BAM Plaintiff, ORDER REGARDING PLAINTIFFS’

NOTICE OF VOLUNTARY DISMISSAL v. (Doc. No. 10.)

WA RE, INC., a California corporation;

TROY A. MCKENNEY, an individual;

DEBRA A. MCKENNEY, an individual; and DOES 1-10, inclusive,

Defendants.

Plaintiff George Avalos initiated this civil action on November 6, 2020. (Doc. No. 1.) Defendants Troy A. McKenney and Debra A. McKenney filed an answer on November 30, 2020. (Doc. No. 8.) Defendant Wa Re, Inc. has not filed an answer.

On December 31, 2020, Plaintiff filed a notice requesting voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. No. 10.) “[U]nder Rule 41(a)(1)(i), 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.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). In this case, Defendant Wa Re, Inc., has not served an answer or a motion for summary judgment. Therefore, Defendant Wa Re, Inc., is terminated from this action under Rule 41(a)(1)(i). However, Defendants Troy A. McKenney and Debra A. McKenny have filed and served an answer. (Doc. No. 8.) Before Plaintiff can dismiss this action in its entirety, Defendants who have filed an answer must consent in writing to the dismissal, either by joint stipulation or filing a consent to dismissal.

Accordingly, IT IS HEREBY ORDERED as follows: (1) Within seven (7) days from the date of this order, Defendants Troy A. McKenney and Debra A. McKenney may respond in writing to Plaintiffs’ notice of voluntary dismissal and indicate whether they consent to the dismissal of this action or whether they have any reason to oppose the dismissal. Alternatively, the parties appearing in this action may file a stipulation of dismissal pursuant to Rule 41(a)(1)(A)(ii); and (2) Based on Plaintiff’s voluntary dismissal, Defendant Wa Re, Inc., is terminated from this action by operation of law without further order from the Court.

IT IS SO ORDERED.

Dated: January 5, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE