(PC) Gradford v. Velasco

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

WILLIAM J. GRADFORD, No. 1:20-cv-00543-NONE-EPG (PC)

Plaintiff, ORDER CONCERNING NOTICE FOR

VOLUNTARY DISMISSAL v. (ECF No. 42)

F. VELASCO and T. WEBSTER,

Defendants.

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.”

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

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)).

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).

IT IS SO ORDERED.

Dated: _ April 19, 2021 [Je heey

UNITED STATES MAGISTRATE JUDGE