Aro Pistachios, Inc. v. Dan On Foods Corporation

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ARO PISTACHIOS, INC., Case No. 1:24-cv-00322-JLT-SAB 12 Plaintiff, ORDER DISREGARDING STIPULATION OF DISMISSAL 13 v. (ECF No. 18) DAN ON FOODS CORPORATION, et al., FOURTEEN DAY DEADLINE 15 Defendants.

17 Plaintiff Aro Pistachios, Inc. filed this action against Dan On Foods Corporation (“Dan On Foods”) and PNC Bank National Association (“PNC Bank”) on March 15, 2024. (ECF No. 1.) On June 25, 2024, Dan On Foods filed its answer to the complaint. (ECF No. 13.) PNC Bank has not filed an answer or motion for summary judgment.

21 On August 16, 2024, Plaintiff filed a stipulation for dismissal of PNC Bank with prejudice. (ECF No. 18.) The stipulation is signed only by Plaintiff and PNC Bank. (Id. at 5.)

23 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 26 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)).

Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure 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)Gi). “As the express language of this | rule indicates, for a dismissal under Rule 41(a)(1)i) to be effective, all parties who have appeared must sign the _ stipulation.” Aswad _v. ACA Receivables, L.L.C., No. | CIVFO60835AWILJO, 2007 WL 427591, at *1 (E.D. Cal. Feb. 7, 2007) (emphasis added); see | also Thacker v. AT&T Corp., No. 220CVO0255KJMCKDPS, 2021 WL 1784873, at *1 (E.D.

7 | Cal. May 5, 2021), report and recommendation adopted, No. 220CVO255KJMCKDPS, 2021 WL 8 | 4168533 (E.D. Cal. Sept. 14, 2021).

9 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).

13 Here, the stipulation is signed only by Plaintiff and PNC Bank, which has not appeared in | this action. Defendant Dan On Foods, however, has filed an answer but is not a signatory to the | dismissal. Plaintiffs stipulation for dismissal is therefore 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 against PNC Bank, it is required to comply | with the procedures set forth in Rule 41 by filing a stipulation that complies with Rule | 41(a)(1)(A)Gi) or a motion under Rule 41(a)(2).

20 Accordingly, Plaintiff's notice of voluntary dismissal is HEREBY DISREGARDED.

21 | Plaintiff shall file a request for dismissal of PNC Bank that complies with Rule 41 within | fourteen (14) days from the date of entry of this order.

24 IT IS SO ORDERED. OF. nf ee | Dated: _ August 19, 2024 UNITED STATES MAGISTRATE JUDGE