Opinion
2:07-cv-00488-GEB-EFB.
March 7, 2008
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
On December 19, 2007, Defendant Greg Gomer moved for summary judgment on each cause of action in Plaintiffs' Complaint on the ground that he "has no liability under any of the allegations or averments of the complaint." (Mot. at 2:1-3.) Mr. Gomer also moved for $27,625.00 in attorney's fees under 42 U.S.C. § 1988(b). (Id. at 6:14-15.) On February 13, 2008, Plaintiffs filed a document in which they purport to voluntarily dismiss the action with prejudice as to Mr. Gromer under Federal Rule of Civil Procedure 41(a). (Notice of Voluntary Dismissal of Greg Gomer, Dkt No. 54.) On February 14, 2008, the Clerk of the Court entered a notice that Mr. Gomer was terminated as a party in this action.
All subsequent references to Rules are to the Federal Rules of Civil Procedure.
Plaintiffs' dismissal of Mr. Gomer, however, was defective under Rule 41(a) because Mr. Gomer had already submitted an answer in this action as well as a motion for summary judgment and Plaintiff did not obtain a stipulation of dismissal by all parties who have appeared, nor did plaintiff request a court order. (Dkt. Nos. 14, 41.) "[T]he plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposition party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." Rule 41(a). However, the docket entry for Plaintiffs' notice of voluntary dismissal reveals that it was served on all parties and there is no indication that the parties did not intend to be bound by the dismissal. Cf. Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 279 (5th Cir. 1987) (finding formal requirements of Rule 41(a)(1) need not be followed to effectuate dismissal when intent of parties was to dismiss). Accordingly, this order will serve to effectuate Plaintiffs' dismissal as required by Rule 41(a). But first, the request for attorney's fees must be addressed.
In support of his request for attorney's fees, Mr. Gomer simply declares "I have incurred approximately $27,625.00 in the defense of this litigation. I say approximately as I am including the anticipated costs that will be incurred between now and any ruling on my Motion for Summary Judgment. As of this writing my costs are $23,625.00." This conclusory declaration is insufficient to justify an award of attorney's fees. See L.R. 54-293(b)(4). Therefore, Mr. Gomer's request for attorney's fees is denied. Mr. Gomer is hereby dismissed from this action with prejudice as Plaintiff requested.
IT IS SO ORDERED.