Professional Solutions Insurance Company v. Cardot

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA PROFESSIONAL SOLUTIONS Case No. 1:19-cv-01605-NONE-SAB INSURANCE COMPANY,

ORDER DISREGARDING NOTICE OF

Plaintiff, VOLUNTARY DISMISSAL

v. (ECF No. 22)

JOHN M. CARDOT, et al.,

Defendants.

Plaintiff Professional Solutions Insurance Company filed this action against Defendants John Cardot, and Coleman & Horowitt LLP, on November 8, 2019. (ECF No. 1.) On March 31, 2020, Defendant John Cardot filed an answer to the complaint, and on April 23, 2020, Defendant Coleman & Horowitt LLP filed an answer. (ECF Nos. 10, 12.) On April 13, 2021, Plaintiff filed a notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, attempting to dismiss the action without prejudice and with each party to bear its own costs and attorney fees. (ECF No. 22.) No Defendants signed the filing. (Id.)

Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘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

27 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Here, Defendant has filed an answer, so Plaintiff cannot voluntarily dismiss this action pursuant to Rule 41(a)(1)(A)Q@).

Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an action without a court order by filing a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). A party may also dismiss an action by filing a motion requesting the Court to dismiss the action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982).

Plaintiff's notice of voluntary dismissal is defective under Rule 41(a) because it is not a signed stipulation by all parties who have appeared and it is not a motion under Rule 41(a)(2). If Plaintiff wishes to dismiss this action, they are required to comply with the procedures set forth in Rule 41 by filing a stipulation that complies with Rule 41(a)(1)(A)@i) or a motion under Rule 41(a)(2).

Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED. IT IS SO ORDERED. OF. ee Dated: _April 13, 2021 _ ef

UNITED STATES MAGISTRATE JUDGE