Duran v. City of Porterville ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 JOHN DURAN, et al., Case No. 1:22-cv-00614-DAD-SAB 11 Plaintiffs, ORDER DIRECTING CLERK OF COURT 12 TO CLOSE CASE AND ADJUST DOCKET v. TO REFLECT VOLUNTARY DISMISSAL 13 CITY OF PORTERVILLE, et al., (ECF No. 19) 14 Defendants. 15 16 Plaintiffs, proceeding pro se, filed this action on May 23, 2022. (ECF No. 1.) 17 Defendants were served on May 31, 2022. (ECF No. 4.) On June 21, 2022, all Defendants 18 joined in and filed a motion to dismiss this action. (ECF No. 5.) On July 27, 2022, Plaintiffs 19 filed a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure “41(1)(A) 20 [sic].” (ECF No. 19.) No Defendants signed the filing, and thus the Court considers it a notice 21 of a voluntary dismissal by Plaintiffs pursuant to Rule 41(a)(1)(A)(i). 22 Under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, ‘a plaintiff has an 23 absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 24 motion for summary judgment.’ ” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 25 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 26 1997)). The Ninth Circuit has held that Rule 41(a) allows a plaintiff to dismiss without a court 27 order any defendant who has yet to serve an answer or motion for summary judgment. Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993). “[A] dismissal under Rule 41(a)(1) is effective on 1 | filing, no court order is required, the parties are left as though no action had been brought, the 2 | defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” 3 | Commercial Space Mgmt. Co.., Inc., 193 F.3d at 1078. 4 Courts do not generally consider a motion to dismiss to be an answer or a motion for 5 | summary judgment for purposes of Rule 41. See Concha v. London, 62 F.3d 1493, 1506 (9th 6 | Cir. 1995) (“Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his 7 | action voluntarily by filing a notice of dismissal under Rule 41(a)(1).”); Post Tension Cables Inc. 8 | v. Actuant Corp., No. 219CVO1455RSLDWC, 2019 WL 6686679, at *1 (W.D. Wash. Nov. 12, 2019) (“Here, Defendant has not filed an answeror motion for summary judgment, and 10 | Defendant’s Motion to Dismiss does not impact Plaintiff's ability to voluntarily dismiss this 11 | case.”), report_and recommendation adopted, No. 219CVO1455RSLDWC, 2019 WL 6683775 12 | (W.D. Wash. Dec. 6, 2019); Kun Yuan Asset Mgmt. Co. Ltd. v. Su, No. 21-CV-06236-BLF, 13 WL 206794, at *1 (N.D. Cal. Jan. 24, 2022) (“While Defendant has filed 14 | a motion to dismiss, this does not constitute an ‘answer or a motion for summary judgment’ 15 | under Rule 41(a)(1)(A)@).”); see_also Crum v. Circus Circus Enterprises, 231 F.3d 1129, 1130 16 | n.3 (9th Cir. 2000) (“A motion to dismiss is not a ‘responsive pleading’ within the meaning of 17 | Rule 15.”); Appling v. Serv. Mgmt. Sys., Inc., No. F06-1645 AWILJO, 2007 WL 127973, at *1 18 | (E.D. Cal. Jan. 12, 2007) (“Here, the Defendant did not file an answer, but instead filed a motion 19 | to dismiss and a motion to strike . . . Plaintiff was entitled to file his amended complaint as a 20 | matter of course under Rule 15(a).”). 21 Accordingly, the Clerk of the Court is HEREBY ORDERED to CLOSE the file in this 22 | case and adjust the docket to reflect voluntary dismissal of this action pursuant to Rule 41(a). 23 24 IT IS SO ORDERED. OF. nf ee 95 | Dated: _ July 28, 2022 UNITED STATES MAGISTRATE JUDGE 27 28