Ermert v. Modernly Inc. ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 FALCO ERMERT, Case No. 1:23-cv-01037-JLT-SAB 11 Plaintiff, ORDER DIRECTING CLERK OF COURT TO 12 CLOSE CASE AND ADJUST DOCKET TO v. REFLECT VOLUNTARY DISMISSAL 13 MODERNLY INC et al., 14 (ECF No. 11) Defendants. 15 16 17 This action was filed on September 8, 2023. (ECF No. 1.) On November 28, 2023, 18 Plaintiff filed a notice of voluntary dismissal with prejudice and with each party to bear its own 19 costs, attorneys’ fees, and expenses pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil 20 Procedure. (ECF No. 11.) 21 “[U]nder Rule 41(a)(1)(A)(i), ‘a plaintiff has an absolute right to voluntarily dismiss his 22 action prior to service by the defendant of an answer or a motion for summary judgment.’ ” 23 Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) 24 (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). The Ninth Circuit has 25 held that Rule 41(a) allows a plaintiff to dismiss without a court order any defendant who has yet 26 to serve an answer or motion for summary judgment. Pedrina v. Chun, 987 F.2d 608, 609 (9th 27 Cir. 1993). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, 28 the parties are left as though no action had been brought, the defendant can’t complain, and the 1 | district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt. Co.., Inc., 193 2 | F.3d at 1078. In this action, no defendant has filed an answer or other responsive pleading. 3 Accordingly, the Clerk of the Court is HEREBY ORDERED to CLOSE the file in this 4 | case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule □□□□ 5 6 IT IS SO ORDERED. DAA (e_ 7 | Dated: _November 29, 2023 __ ef UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28