(PC) Gradford v. Velasco

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIAM J. GRADFORD, No. 1:20-cv-00543-NONE-EPG (PC) 12 Plaintiff, ORDER CONCERNING NOTICE FOR VOLUNTARY DISMISSAL 13 v. (ECF No. 42) F. VELASCO and T. WEBSTER, 15 Defendants.

17 On April 16, 2021, Plaintiff William J. Gradford, a former pretrial detainee proceeding pro se and in forma pauperis, filed a document entitled “Plaintiff request dismiss cases and all pending other cases voluntar[i]ly claims and defendants.” (ECF No. 42). Plaintiff’s filing states that Plaintiff “voluntarily dismiss[es]` this case all claims and defendants and resachedule settlement conference note above Plaintiff does not name Trexiera as defendant, so the court will not address the viability of a claim against Trexiera for retaliation as stated.”

23 Because Defendants have filed an answer, (ECF No. 19), and did not stipulate to the voluntary notice, a plaintiff may dismiss this case under Rule 41(a) only upon with Defendants’ stipulation, Fed. R. Civ. P. 41(a)(1)(A)(ii), or upon a motion and court order, id. 41(a)(2). Accord Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (“Once the defendant serves an answer or a motion for summary judgment, however, the plaintiff may no longer voluntarily dismiss under Rule 41(a)(1), but must file a motion for voluntary dismissal under Rule 41(a)(2).

1 | Unlike a Rule 41(a)(1) notice of dismissal, a Rule 41(a)(2) motion requires court approval.”

2 | (citations omitted)).

3 A Rule 41(a)(2) motion for voluntarily dismissal “is addressed to the district court's sound | discretion.” Stevedoring Serv. of Am. v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th Cir. □□□□□□ | “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a | defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, | 263 F.3d 972, 975 (9th Cir. 2001). “ ‘[L]egal prejudice’ means ‘prejudice to some legal interest, | some legal claim, some legal argument.’ ” Jd. at 976 (quoting Westlands Water Dist. v. United | States, 100 F.3d 94, 97 (9th Cir. 1996)).

10 Accordingly, Defendants are directed to file a response or statement of non-opposition to | the notice within fourteen (14) days of the date of this order. Alternatively, the parties may file a | stipulation of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)@i).

4 IT IS SO ORDERED.

15 | Dated: _ April 19, 2021 [Je heey 16 UNITED STATES MAGISTRATE JUDGE