Martin v. Sephora USA, Inc. ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 RUTH MARTIN, Case No. 1:22-cv-01355-JLT-SAB 11 Plaintiff, ORDER DIRECTING CLERK OF COURT 12 TO CLOSE CASE AND ADJUST DOCKET v. TO REFLECT VOLUNTARY DISMISSAL 13 SEPHORA USA, INC., (ECF No. 29) 14 Defendant. 15 16 This action was filed on October 23, 2022. (ECF No. 1.) A motion to dismiss is 17 currently pending as to Plaintiff’s first amended complaint. (ECF Nos. 22, 26.) On May 16, 18 2023, Plaintiff filed a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal 19 Rules of Civil Procedure. (ECF No. 29.) 20 “Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an 21 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 22 motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 23 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 24 1997)). The Ninth Circuit has held that Rule 41(a) allows a plaintiff to dismiss without a court 25 order any defendant who has yet to serve an answer or motion for summary judgment. Pedrina 26 v. Chun, 987 F.2d 608, 609 (9th Cir. 1993). “[A] dismissal under Rule 41(a)(1) is effective on 27 filing, no court order is required, the parties are left as though no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” 1 | Commercial Space Mgmt. Co., Inc., 193 F.3d at 1078. 2 Courts do not generally consider a motion to dismiss to be an answer or a motion for 3 | summary judgment for purposes of Rule 41. See Concha v. London, 62 F.3d 1493, 1506 (9th 4 | Cir. 1995) (“Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his 5 | action voluntarily by filing a notice of dismissal under Rule 41(a)(1).”); Post Tension Cables Inc. 6 | v. Actuant Corp., No. 219CVO1455RSLDWC, 2019 WL 6686679, at *1 (W.D. Wash. Nov. 12, (“Here, Defendant has not filed an answeror motion for summary judgment, and 8 | Defendant’s Motion to Dismiss does not impact Plaintiffs ability to voluntarily dismiss this 9 | case.”), report recommendation adopted, No. 219CV01455RSLDWC, 2019 WL 6683775 10 | (W.D. Wash. Dec. 6, 2019); Kun Yuan Asset Mgmt. Co. Ltd. v. Su, No. 21-CV-06236-BLF, 11 WL 206794, at *1 (N.D. Cal. Jan. 24, 2022) (“While Defendant has filed 12 | a motion to dismiss, this does not constitute an ‘answer or a motion for summary judgment’ 13 | under Rule 41(a)(1)(A)Q).”). 14 Accordingly, the Clerk of the Court is HEREBY ORDERED to CLOSE the file in this 15 | case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule (a). 16 17 IT IS SO ORDERED. DAM Le 18 | Dated: _May 17, 2023 _ ef 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28