Palacios v. United States ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON PALACIOS, Case No. 1:20-cv-01052-NONE-SAB 12 Plaintiff, ORDER GRANTING IAN WALLACH MOTION TO WITHDRAW AS LOCAL 13 v. COUNSEL AND DIRECTING CLERK OF THE COURT TO ADJUST THE DOCKET 14 UNITED STATES, TO REFLECT VOLUNTARY DISMISSAL UNDER RULE 41(a) OF THE FEDERAL 15 Defendant. RULES OF CIVIL PROCEDURE 16 (ECF Nos. 30, 31) 17 18 Jason Palacios (“Plaintiff”), a federal prisoner, filed this action pursuant to the Federal 19 Tort Claims Act alleging claims of negligence. (ECF No. 1.) On August 10, 2020, EJ Hurst 20 filed a pro hac vice application which was granted on August 11, 2020. (ECF Nos. 10, 12.) On 21 July 2, 2021, Ian Wallace filed a motion to withdraw as local counsel for Plaintiff. (ECF No. 22 30.) On July 6, 2021, a notice of voluntary dismissal was filed. (ECF No. 31.) 23 “[U]nder Rule 41(a)(1)(A)(i), ‘a plaintiff has an absolute right to voluntarily dismiss his 24 action prior to service by the defendant of an answer or a motion for summary judgment.’ ” 25 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 26 (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). The Ninth Circuit has 27 held that Rule 41(a) allows a plaintiff to dismiss without a court order any defendant who has yet to serve an answer or motion for summary judgment. Pedrina v. Chun, 987 F.2d 608, 609 (9th 1 | Cir. 1993). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, 2 | the parties are left as though no action had been brought, the defendant can’t complain, and the 3 | district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt. Co.., Inc., 193 4 | F.3d at 1078. In this action, no defendant has filed an answer or other responsive pleading. 5 As this matter has been dismissed, the Court shall grant Mr. Wallach’s motion to 6 | withdraw as local counsel. See Simmons Bank, Tr. of Heartland Bank Liquidating Tr. U/I/D 7 | Mar. 8, 2018 v. First Cap. Victoria LLC, No. 4:17-CV-549-DPM, 2019 WL 8881792, at *2 8 | (E.D. Ark. Mar. 21, 2019) (waiving the requirement for local counsel where case has been 9 | mostly concluded); Schrag v. Dinges, No. CIV. A. 88-1373-FGT, 1993 WL 561014, at *1 (D. 10 | Kan. Dec. 14, 1993) (waiving requirement for local counsel as it served the interest of all parties 11 | to the litigation). 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Ian Wallach’s motion to withdraw as local counsel is GRANTED; 14 2. All pending dates and matters in this action are VACATED; 15 3. The Clerk of the Court is DIRECTED to assign a district judge to this case for the 16 purpose of closing the case and then to adjust the docket to reflect voluntary 17 dismissal of this action pursuant to Rule 41(a). 18 19 IT IS SO ORDERED. DAM Le 20 | Dated: _July 6, 2021 _ OO UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28