(PS) Wilcox v. Mehner ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAEL WILCOX, No. 2:21–cv–02140 TLN CKD PS 12 Plaintiff, ORDER 13 v. 14 MAXINE MEHNER, et al., 15 Defendants. 16 17 Plaintiff has requested a voluntary dismissal of this case without prejudice pursuant to 18 Federal Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 9.) Federal Rule of Civil Procedure 19 41(a)(1)(A) provides that “the plaintiff may dismiss an action without a court order by filing . . . 20 (i) a notice of dismissal before the opposing party serves either an answer or a motion for 21 summary judgment . . . .” “Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to 22 dismiss his action prior to service by the defendant of an answer or a motion for summary 23 judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his 24 action voluntarily by filing a notice of dismissal under Rule 41(a)(1). The dismissal is effective 25 on filing and no court order is required...Unless otherwise stated, the dismissal is ordinarily 26 without prejudice to the plaintiff’s right to commence another action for the same cause against 27 the same defendants.” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995); see also United 28 States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th 1 |} Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no action on the part of the 2 || court and divests the court of jurisdiction once the notice of voluntary dismissal is filed). 3 Because defendants have not yet served an answer or motion for summary judgment in 4 || this case, plaintiff's request for dismissal is effective without a court order. Accordingly, for 5 || purposes of clarity, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for dismissal (ECF No. 9) is granted as set forth above; 7 2. The action is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil 8 Procedure 41(a)(1)(A)(); 9 3. The pending motions by defendants (ECF Nos. 4 and 5) are DENIED AS MOOT; and 10 4. The Clerk of Court is directed to CLOSE this case and vacate all dates. 11 | Dated: January 14, 2022 / aa / a Ly a 2 CAROLYN K.DELANEY 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 || 2Awilcox2140.voluntarydismiss 19 20 21 22 23 24 25 26 27 28