Avalos v. MMDEOL Incorporated ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE AVALOS, Case No. 1:20-cv-01548-NONE-SAB 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND 13 v. CLOSE CASE AND ADJUST DOCKET TO REFLECT VOLUNTARY DISMISSAL 14 MMDEOL INC., et al., (ECF No. 16) 15 Defendants. 16 17 This action was filed on October 30, 2020. (ECF No. 1.) On December 30, 2020, 18 Plaintiff filed a motion for default judgment. (ECF No. 11.) The Court found multiple apparent 19 deficiencies in the motion for default judgment, and on January 12, 2021, the Court ordered 20 Plaintiff to supplement the motion for default judgment to address the issues identified. (ECF 21 No. 12.) On January 15, 2021, Plaintiff filed a response to the Court’s January 12, 2021 order. 22 (ECF No. 15.) The filing indicates that in preparing the response, Plaintiff engaged in additional 23 efforts to address all of the Court’s concerns, including returning to the subject property to 24 further quantify Defendant’s compliance with the requirements of the ADA. (Id.) Plaintiff 25 submits that from review of the property and photographs taken, “it appears that the built up curb 26 ramp at issue in this matter has been replaced with what appears to be [] more facially compliant 27 features.” (Id. at 2.) The response also indicates that Plaintiff would request dismissal of this action in a separate filing. (Id.) On January 15, 2021, Plaintiff filed a notice of voluntary 1 | dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. (ECF No. 16.) 2 “(UJnder Rule 41(a)(1)(A)@), “a plaintiff has an absolute right to voluntarily dismiss his 3 | action prior to service by the defendant of an answer or a motion for summary judgment.’ ” 4 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 5 | (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). The Ninth Circuit has 6 | held that Rule 41(a) allows a plaintiff to dismiss without a court order any defendant who has yet 7 | to serve an answer or motion for summary judgment. Pedrina v. Chun, 987 F.2d 608, 609 (9th 8 | Cir. 1993). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, 9 | the parties are left as though no action had been brought, the defendant can’t complain, and the 10 | district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt. Co.., Inc., 193 11 | F.3d at 1078. In this action, no defendant has filed an answer or other responsive pleading. 12 Accordingly, the Clerk of the Court is HEREBY DIRECTED to assign a district judge to 13 | this case for the purpose of closing the case and then to adjust the docket to reflect voluntary 14 | dismissal of this action pursuant to Rule 41(a). 15 16 IT IS SO ORDERED. DAM Le 17 | Dated: _ January 19, 2021 _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28