(PC) Smith v. Zanoni ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEREK M. SMITH, No. 1:23-cv-01003-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO TERMINATE ACTION PURSUANT TO 13 v. PLAINTIFF’S NOTICE OF VOLUNTARY DISMISSAL 14 JOHN ZANONI, (ECF No. 8) 15 Defendant. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 18 to 42 U.S.C. § 1983. 19 On July 28, 2023, in response to the Court’s order to show cause, Plaintiff moves to 20 voluntarily dismiss this action as duplicative of Smith v. Zanoni, Case No. 1:23-cv-00961-SAB 21 (PC). (ECF No. 8.) 22 Plaintiff has a right to voluntarily dismiss this case under Rule 41 of the Federal Rules of 23 Civil Procedure. In Wilson v. City of San Jose, the Ninth Circuit explained: 24 Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior 25 to service by the defendant of an answer or a motion for summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman 26 American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant's service of 27 an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or 28 1 some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court 2 automatically terminates the action as to the defendants who are the subjects of the notice. 3 Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the 4 same defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been 5 brought. Id. 6 | Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No defendant has filed an answer 7 | or motion for summary judgment in this case. Therefore, Plaintiff's notice of dismissal is 8 || effective, and this case shall be closed. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff's notice of dismissal is effective as of the date it was filed; 11 2. This case is DISMISSED in its entirety without prejudice; and 12 3. The Clerk of the Court is DIRECTED to close the file in this case and adjust the docket 13 to reflect voluntary dismissal of this action pursuant to Rule 41 (a). 14 | ITS SO ORDERED. FA. ee 16 | Dated: _ July 31, 2023 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28