(HC) Moreno v. Samuel ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE MORENO, No. 2:21-cv-01493 TLN GGH P 12 Petitioner, 13 v. ORDER 14 DANNY SAMUEL, Acting Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding through counsel, has filed a motion to dismiss 18 requesting that this action be dismissed without prejudice and that the Court permit petitioner’s 19 counsel to withdraw. ECF No. 7. The court construes petitioner's motion to dismiss as a notice of 20 voluntary dismissal without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). 21 Rule 41(a)(1)(A) provides that “the plaintiff may dismiss an action without a court order 22 by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion 23 for summary judgment[.]” Fed. R. Civ. P. 41(a)(1)(A)(i). “The filing of a notice of voluntary 24 dismissal with the court [pursuant to Rule 41(a)(1)] automatically terminates the action as to the 25 defendants who are the subjects of the notice. 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 //// 28 //// 1 the same defendants.” Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)(citations 2 omitted). Here, no answer or motion to dismiss has been filed. Accordingly, petitioner’s notice of 3 voluntary dismissal is effective without court order. 4 Additionally, petitioner requests to have his counsel withdrawn. ECF No. 7 at 3 ⁋3. “[A]n 5 attorney who has appeared may not withdraw leaving the client in propria persona without leave 6 of court upon noticed motion and notice to the client and all other parties who have appeared.” 7 Cal. E.D. Cal. 182(d). Given petitioner’s notice of voluntary dismissal, and this action been 8 effectively closed, petitioner’s motion to withdraw is moot. “Once the notice of dismissal has 9 been filed, the district court loses jurisdiction over the dismissed claims and may not address the 10 merits of such claims or issue further orders pertaining to them.” Duke Energy Trading & Mktg., 11 L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001). 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The motion to withdraw as counsel for petitioner (ECF No. 7) is moot; and 14 2. Petitioner’s motion to dismiss (ECF No. 7) is construed as a notice of voluntary 15 dismissal without prejudice pursuant to Fed. R. Civ. R. 41(a)(1)(A)(i); 16 3. The Clerk of the Court is directed to close this case. 17 Dated: September 28, 2021 /s/ Gregory G. Hollows 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28