1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER STROJNIK, SR., Case No. 1:19-cv-01196-BAM 12 Plaintiff, ORDER CLOSING CASE IN LIGHT OF

UNOPPOSED REQUEST TO DISMISS

13 v. (Doc. No. 15) 14 1309 WEST SHAW, LLC, 15 Defendant. 16 17 18 Plaintiff Peter Strojnik, Sr., (“Plaintiff”) proceeding pro se, initiated this Americans with 19 Disabilities Act action on August 30, 2019. (Doc. No. 1.) Defendant 1309 West Shaw, LLC 20 (“Defendant”) answered the complaint on December 11, 2019. (Doc. No. 12) The parties have 21 consented to the jurisdiction of a United States Magistrate Judge for all purposes. (Doc. Nos. 4, 22 12-1.) 23 On January 9, 2020, Plaintiff filed a notice of voluntary dismissal of this action with 24 prejudice pursuant to Federal Rule of Civil Procedure 41(a). (Doc. No. 15.) The Court construed 25 the notice as a motion to dismiss the action pursuant to Federal Rule of Civil Procedure 41(a)(2) 26 and directed Defendant to file a response or statement of non-opposition to the motion or, 27 alternatively, for the parties to file a stipulation of dismissal. (Doc. No. 16.) On January 10, 28 1 2020, Defendant filed a statement of non-opposition. (Doc. No. 17.) Defendant affirmed that it 2 does not oppose Plaintiff’s motion to dismiss this action with prejudice. (Id.) 3 Federal Rule of Civil Procedure 41(a)(1) “allows plaintiffs voluntarily to dismiss some or 4 all of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy 5 Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Under Rule 41(a)(1)(A)(i), “a plaintiff has an 6 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 7 motion for summary judgment” by filing a notice of dismissal. Wilson v. City of San Jose, 111 8 F.3d 688, 692 (9th Cir. 1999). Where a defendant has served an answer or a motion for summary 9 judgment, the plaintiff may no longer voluntarily dismiss by filing a notice of dismissal under 10 Rule 41(a)(1)(A)(i) and must file either a stipulation of dismissal signed by all parties who have 11 appeared under Rule 41(a)(1)(A)(ii) or a motion for voluntary dismissal under Rule 41(a)(2). Id.; 12 see also Fed. R. Civ. P. 41(a). Rule 41(a)(2) provides in relevant part: “Except as provided in 13 Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms 14 that the court considers proper. . .. Unless the order states otherwise, a dismissal under this 15 paragraph (2) is without prejudice.” Fed. R. Civ. P. 41(a)(2); Hargis v. Foster, 312 F.3d 404, 412 16 (9th Cir. 2003). “A district court should grant a motion for voluntary dismissal under Rule 17 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” 18 Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). 19 In this instance, Defendant filed and served an answer before Plaintiff’s notice of 20 voluntary dismissal was filed and Plaintiff did not submit a stipulation of dismissal signed by 21 Defendant. As such, the action may not be automatically dismissed under Rule 41(a)(1). See 22 Fed. R. Civ. P. 41(a)(1). However, Defendant has not opposed Plaintiff’s request for dismissal of 23 this action with prejudice. Given Defendant’s non-opposition, the Court finds no reason to deny 24 Plaintiff’s request for voluntary dismissal under Rule 41(a)(2). Therefore, the Court shall grant 25 the motion and close this action. See Fed. R. Civ. P. 41(a)(2); Hargis, 312 F.3d at 412; Smith, 26 263 F.3d at 975. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s motion for voluntary dismissal with prejudice under Rule 41(a)(2) (Doc. 1 No. 15) is GRANTED; 2 2. The action is terminated in its entirety; 3 3. All pending dates and matters are VACATED; and 4 4. The Clerk of the Court is directed to CLOSE this case. 5

IT IS SO ORDERED.

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7 Dated: January 13, 2020 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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