(PS) Alokozay v. Garland ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HUMAIRA ALOKOZAY, No. 2:24-cv-00084-DJC-CKD (PS) 12 Plaintiff, 13 v. ORDER 14 MERRICK B. GARLAND, et al., 15 Defendants. 16 17 On January 8, 2024, Plaintiff filed this action alleging violations pursuant to the 18 Administrative Procedure Act (“APA”), 5 U.S.C. § 706; the Mandamus Act, 28 U.S.C. § 1361; 19 and the Declaratory Judgment Act, 28 U.S.C. § 2201. (See generally ECF No. 1.) On March 14, 20 2024, Defendants filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil 21 Procedure. (ECF No. 7.) On April 3, 2024, the Court issued Findings and Recommendations 22 recommending Defendant’s unopposed motion to dismiss be granted and this action be dismissed 23 as moot. (ECF No. 9.) On April 12, 2024, Plaintiff filed a Notice of Voluntary Dismissal pursuant 24 to Rule 41(a)(1). (ECF No. 10.) 25 Pursuant to Rule 41(a)(1), Plaintiff has a right to voluntarily dismiss this action prior to 26 service by the Defendant of an answer or a motion for summary judgment. No Defendants have 27 filed an answer or motion for summary judgment in this action. The Ninth Circuit has explained: 28 /// ] Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a 2 motion for summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American 3 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 4 prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is 5 required. /d. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. /d.; 6 Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically 7 terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the 8 dismissal is ordinarily without prejudice to the plaintiffs right to commence another action for the same cause against the same 9 defendants. /d. (citing McKenzie vy. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal 10 leaves the parties as though no action had been brought. /d. 11 | Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). “Even if the defendant has filed a 12 || motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal 13 | under Rule 41(a)(1).” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Miller v. 14 | Reddin, 422 F.2d 1264, 1266 (9th Cir.1970)). Accordingly, Plaintiff's notice of voluntary 15 | dismissal is effective, and this case shall be closed. The Court will withdraw its pending Findings 16 || and Recommendations issued on April 3, 2024. 17 IT IS HEREBY ORDERED that: 18 1. The Court’s April 3, 2024, Findings and Recommendations (ECF No. 9) are 19 WITHDRAWN; 20 2. Plaintiff's Notice of Voluntary Dismissal (ECF No. 10) filed on April 12, 2024, is 21 effective the date the notice of dismissal was filed; 22 3. This case is DISMISSED in its entirety, without prejudice; 23 4. Defendants’ Motion to Dismiss (ECF No. 7) is DENIED as moot; and 24 5. The Clerk of the Court is directed to close this case. 25 . oy Dated: May 14, 2024 (adr. CA the — 2 Ef 6 CAROLYN K. DELANEY 27 | 4, aloxoos4.24 UNITED STATES MAGISTRATE JUDGE 28