Conclusionįor the foregoing reasons, the Court recommends the Notice of Dismissal (Dkt. 35) should be granted pursuant to Rule 41(a). Accordingly, the Court finds the Notice of Dismissal (Dkt. Therefore, Defendant Phoenix Financial may be dismissed from this action. Plaintiff and Defendant Phoenix Financial have filed a stipulation of dismissal. Thus, Plaintiff may voluntarily dismiss Defendant Pendrick Capital. Here, Defendant Pendrick Capital has not filed an answer or summary judgment motion. Once the defendant has responded to the complaint, the action may only be dismissed by stipulation of dismissal signed by all parties who have appeared or "by court order, on terms that the court considers proper." Fed.R.Civ.P. Under Rule 41(a)(1), an action may be voluntarily dismissed without prejudice by the plaintiff if the plaintiff files a notice of dismissal before the defendant files an answer or summary judgment motion and the plaintiff has not previously dismissed an action "based on or including the same claim." Fed.R.Civ.P. Discussionįederal Rule of Civil Procedure 41 sets forth the circumstances under which an action may be dismissed. After review of the record, the undersigned recommends Defendants Pendrick Capital Partners Holdings, LLC and Phoenix Financial Services, LLC be dismissed without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure. Presently before the Court are Plaintiff's Notice of Dismissal of Defendant Pendrick Capital Partners Holdings, LLC Pursuant to FRCP 41 and Motion to and Agreed Order Dismissing Defendant Phoenix Financial Services, LLC Pursuant to FRCP 41. The District Court referred this action to United States Magistrate Judge David W.
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