Petersen v. Buyard ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KYLE PETERSEN, Case No. 1:20-cv-00954-DAD-EPG 11 Plaintiff, 12 v. ORDER DIRECTING CLERK OF COURT TO CLOSE CASE IN LIGHT OF PLAINTIFF’S 13 MEKIASH BUYARD, NOTICE OF VOLUNTARY DISMISSAL 14 Defendant. (ECF No. 36) 15 16 On February 14, 2022, Plaintiff Kyle Petersen filed a notice of voluntary dismissal (ECF 17 No. 36), pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), as Defendant has not filed an 18 answer or motion for summary judgment. Accordingly, the Clerk of Court is respectfully directed 19 to close the case. 20 Although Defendant has filed a motion to dismiss (ECF No. 23), with pending findings 21 and recommendations to grant the motion and dismiss the case with prejudice (ECF No. 35), 22 Plaintiff still has the right to voluntarily dismiss this case: 23 Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his 24 action prior to service by the defendant of an answer or a motion for summary judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may 25 terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1). 26 Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (internal citation omitted).1 27 1 Plaintiff’s notice of dismissal does not state whether it is with or without prejudice. Accordingly, under 28 Rule 41(a)(1)(B), the dismissal is considered to be without prejudice unless Plaintiff “previously dismissed nen nn eee OE EI IEE EID 1 Accordingly, the Clerk of Court is respectfully directed to close the case. 2 3 IT IS SO ORDERED. 4! Dated: _ February 15, 2022 hey 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 any federal- or state-court action based on or including the same claim, [then the] notice of dismissal operates as an adjudication on the merits.” Additionally, while Plaintiff is being permitted to dismiss this 26 | case voluntarily, the Court does not reach the question of whether such a dismissal following a finding of failure to state a claim will count as a strike under the PLRA. Spencer v. Beard, No. 1:19-CV-0161- 27 | 5DAD-HBK, 2021 WL 3418677, at *1 (E.D. Cal. Aug. 5, 2021) (noting debate regarding whether voluntary dismissal with pending recommendation to dismiss should count as a strike, and declining to 28 find a strike in that case).