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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 JACOB SCHEIBE, individually and on Case No.: 3:23-cv-00219-H-DDL 12 behalf of all others similarly situated, ORDER REGARDING PLAINTIFF’S 13 Plaintiff(s), VOLUNTARY DISMISSAL 14 v. PURSUANT TO RULE 41(a)(1)(A)(ii)

15 PERFORMANCE ENHANCING

SUPPLEMENTS, LLC, dba PEScience, a 16 [Doc. No. 22.] Delaware limited liability company,

17 Defendant. 18

19 On June 26, 2023, Plaintiff Jacob Scheibe (“Plaintiff”), individually and on behalf 20 of all others similarly situated, filed a first amended class action complaint against 21 Defendant Performance Enhancing Supplements, LLC, dba PEScience (“PES”). (Doc. No. 22 12.) On September 21, 2023, the parties filed a joint notice of settlement. (Doc. No. 19.) 23 On October 24, 2023, Plaintiff filed a notice of voluntary dismissal pursuant to Federal 24 Rule of Civil Procedure 41(a)(1)(A)(ii). (Doc. No. 22.) The notice requested that 25 Plaintiff’s individual claims be dismissed with prejudice and the putative class claims be 26 dismissed without prejudice. (Id.) 27 Rule 41(a)(1)(A)(ii) permits a plaintiff to voluntarily dismiss an action without a 28 1 || court order so long as the plaintiff files a stipulation of dismissal signed by all parties who 2 ||have appeared in the action.! Fed. R. Civ. P. 41(a)(1)(A)(ii). Here, Plaintiff states that 3 has reviewed and stipulated to the dismissal. (Doc. No. 22.) Counsel for PES signed 4 ||the notice of dismissal and represented that PES has seen and agreed to the voluntary 5 ||dismissal. (Id.) Accordingly, the Court dismisses Plaintiffs individual claims with 6 || prejudice and dismisses the putative class claims without prejudice. The Court instructs 7 Clerk of Court to close the case. 8 IT IS SO ORDERED. 9 DATED: October 24, 2023 lu 10 MARILYN ©. HUFF, Distri ge 1] UNITED STATES DISTRICT COURT 12 13 14 15 16 17 18 A dismissal under Rule 41(a) is subject to Federal Rule of Civil Procedure 23(e). See Fed. R. Civ. P. 41(a). Rule 23(e) provides: “The claims, issues, or defenses of a 19 || certified class—or a class proposed to be certified for purposes of settlement—may be 0 settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed. Civ. P. 23(e). Because no class has been certified in this case or is proposed to be certified as 21 of Plaintiffs voluntary dismissal, Rule 23(e) does not apply to Plaintiffs request to 9 dismiss the action. See Lee v. CVS Pharmacy, Inc., No. 320CV01923 BENDEB,

, at *3 (S.D. Cal. Jan. 28, 2021); Hall v. W. Ref. Retail, LLC, No. 23 519CVO0855VAPSKX,

, at *1 n.1 (C.D. Cal. June 23, 2021); see also A Fed. R. Civ. P. 23(e) advisory committee’s note to 2003 amendment (“The new rule requires approval only if the claims, issues, or defenses of a certified class are resolved by 25 settlement, voluntary dismissal, or compromise.”); but see Albers v. Yarbrough World %6 Sols., LLC, No. 5:19-CV-05896-EJD,

, at *1 (N.D. Cal. May 13, 2021) (“The Ninth Circuit has held that Rule 23(e) also applies before certification, but in a much 27 || lighter form that does not entail ‘the kind of substantive oversight required when reviewing {18 settlement binding upon the class.’” (quoting Diaz v. Trust Territory of Pac. Islands,

, 1408 (9th Cir. 1989)).