Larry Dolney v. Jones and Lamson ( 1996 )

___________
No. 96-1551
___________
Larry Dolney; Brenda Dolney, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Jones and Lamson, a division of * [UNPUBLISHED]
Waterbury and Farrel, *
*
Appellee. *
___________
Submitted: October 4, 1996
Filed: October 21, 1996
___________
Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
In 1995, Larry and Brenda Dolney filed a diversity action against
Jones and Lamson. After some proceedings related to the Dolneys' failure
to serve defendant, the magistrate judge directed them to file proof of
service within ten days and--when they failed to comply--recommended
dismissal for failure to prosecute. Before the district court acted on
this recommendation, the Dolneys filed a notice of voluntary dismissal.
Twenty days later, the district court ordered their action dismissed for
failure to prosecute. The Dolneys appeal.
As defendant had not filed an answer or a summary judgment motion,
the Dolneys' notice of voluntary dismissal was effective. See Fed. R. Civ.
P. 41(a)(1). Thus, the district court was divested of jurisdiction, and
its order of dismissal is void for want of jurisdiction. See Safeguard
Business Sys., Inc. v. Hoeffel, 907 F.2d 861, 862-64 (8th Cir. 1990). The
order being
void, the Dolneys' voluntary dismissal remains effective, and they stand
free to file a new action if they so desire.
The appeal is dismissed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-