(PC) Ioane v. Merlak ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL S. IOANE, 1:19-cv-01585-DAD-GSA-PC 12 Plaintiff, ORDER RE PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 13 vs. UNDER RULE 41, WITHOUT PREJUDICE TO REFILING IN 14 STATE COURT STEVEN MERLAK, et al., (ECF No. 20.) 15 Defendants. ORDER DIRECTING CLERK TO 16 CLOSE FILE 17 18 19 Michael S. Ioane (“Plaintiff”) is a federal prisoner proceeding pro se in this civil rights 20 action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed the 21 Complaint commencing this action on November 6, 2019. (ECF No. 1.) 22 On April 7, 2021, Plaintiff filed a notice of voluntary dismissal of this case under Fed. R. 23 Civ. P. 41(a)(1), without prejudice to refiling the case in state court. (ECF No. 20.) Plaintiff has 24 a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of Civil Procedure. In 25 Wilson v. City of San Jose, the Ninth Circuit explained: 26 Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary 27 judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 28 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant’s service of an answer or motion for summary 1 judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his 2 claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609- 10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court 3 automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is 4 ordinarily without prejudice to the plaintiff’s right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. 5 Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id. 6 7 Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 8 or motion for summary judgment in this case. Therefore, Plaintiff’s notice of dismissal is 9 effective, and this case shall be closed. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s notice of dismissal of this case under Rule 41, without prejudice to 12 refiling the case in state court, is effective as of the date it was filed; 13 2. All pending motions are denied as moot; and 14 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the 15 docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 16 IT IS SO ORDERED. 17 18 Dated: April 8, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28