Swedlow v. Department of the Treasury, Internal Revenue Service ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT PATRICK SWEDLOW, ) Case No.: 1:22-cv-0011 JLT SKO ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S MOTION TO ) DISMISS AND DISMISSING THE ACTION 13 v. ) WITHOUT PREJUDICE ) 14 DEPARTMENT OF THE TREASURY and ) (Docs. 10, 11) INTERNAL REVENUE SERVICE, ) 15 ) Defendants. ) 16 ) 17 Scott Patrick Swedlow asserts the Department of the Treasury and Internal Revenue Service 18 failed to issue a stimulus payment to which he was entitled under the Coronavirus Aid, Relief, and 19 Economic Security Act. (Doc. 9.) The magistrate judge noted the deadline for payments was 20 December 31, 2020, and no additional funds may be issued. (Doc. 10 at 3, 5.) As a result, the 21 magistrate judge found that “Plaintiff cannot establish he is entitled to the relief he seeks pursuant to the 22 CARES Act.” (Id. at 5.) The magistrate judge also noted Plaintiff failed to allege he filed a claim with 23 the IRS—as required to bring a suit against the Government for a tax credit payment—despite the 24 Court informing him of the jurisdictional requirement. (Id.) Thus, the magistrate judge recommended 25 the First Amended Complaint be dismissed without leave to amend on April 5, 2022. (Id. at 5-6.) 26 Plaintiff was granted 21 days to file any objections to the Findings and Recommendations. (Id. at 6.) 27 On April 18, 2022, Plaintiff filed document entitled “Motion to Dismiss,” asserting he does not 28 “wish to contest this issue” and requesting that the Court dismiss the action. (Doc. 11 at 1.) Pursuant 1 || to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, “the plaintiff may dismiss an action 2 || without a court order by filing ... a notice of dismissal before the opposing party serves either an 3 || answer or a motion for summary judgment.” The Court construes Plaintiff's motion to dismiss as a 4 || request under Rule 41(a), as the defendants were not yet served and have not appeared to file an 5 || answer or motion for summary judgment. As a result, Plaintiff's request terminates the matter. /d.; 6 || see also Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Based upon the foregoing, the 7 || Court ORDERS: 8 1. Plaintiff's motion to dismiss (Doc. 11) is GRANTED. 9 2. The Findings and Recommendations issued on April 5, 2022 (Doc. 11) are terminated. 10 3. This action is DISMISSED without prejudice. 11 4 The Clerk of Court is directed to close this action. 12 13 ||IT IS SO ORDERED. 14 Dated: _ April 21, 2022 Cerin | Tower 15 TED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28