Lawrie v. Lawrie Rodriguez ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MATTHEW A. LAWRIE, Case No.: 3:20-cv-01755-DMS-DEB CDCR #F-74464, 11 ORDER: Plaintiff, 12 vs. 1) GRANTING MOTION 13 TO WITHDRAW AND DISMISSING ALICE YVONNE LAWRIE 14 CIVIL ACTION PURSUANT TO RODRIGUEZ; KAREN MERKER; Fed. R. Civ. P. 41(a) 15 STATE OF CALIFORNIA ALKSNE P.J.; [ECF No. 7] JEFFREY BOSTWICK; DOES 1-4, 16 Defendants. AND 17 18 2) DENYING MOTION TO PROCEED IN FORMA 19 PAUPERIS AS MOOT 20 [ECF Nos. 2] 21 22 On September 4, 2020, Plaintiff Mathew A. Lawrie, proceeding pro se and while 23 incarcerated at Kern Valley State Prison in Delano, California, filed this civil rights action 24 pursuant to 42 U.S.C. § 1983 (“Compl.,” ECF No. 1), together with a Motion to Proceed 25 In Forma Pauperis (“IFP”) (ECF No. 2). A few weeks later, Plaintiff filed a Notice of 26 Appeal in the Ninth Circuit Court of Appeals (ECF No. 3), even though this Court had yet 27 to rule on his pending Motion to Proceed IFP or to screen his Complaint pursuant to 28 28 U.S.C. § 1915(e)(2) and § 1915A. 1 Then, on October 26, 2020, Plaintiff filed a “Request for Withdrawal” of both this 2 case and his appeal in the Ninth Circuit. See ECF No. 6; Lawrie v. Rodriguez, et al., Ninth 3 Cir. Ct. App. Appeal Docket No. 20‒56066, Dkt. Entry 2.1 Plaintiff apologizes to both 4 courts for expending “filing time and effort” and seeks to dismiss both this action and his 5 appeal “due to loss of records” and “through no fault of [his own].” See ECF No. 7 at 1. 6 I. Motion to Withdraw and Dismiss 7 The filing of a notice of voluntary dismissal with the court automatically terminates 8 the action as to the defendants who are the subjects of the notice. . . . Such a dismissal 9 leaves the parties as though no action had been brought.” American Soccer Co., Inc. v. 10 Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) (citing Wilson v. City of San 11 Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citations and footnote omitted)). Thus, because 12 Plaintiff has notified the Court that he does not wish to prosecute his case at this time, no 13 party has yet to be served with any valid pleading, and no answer or motion for summary 14 judgment has yet to be filed, voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) 15 is appropriate. See Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 1532, 1534–35 16 (9th Cir. 1987) (“As the rule states, no action by the court is required for dismissal by notice 17 under Rule 41(a)(1)(i). A voluntary dismissal by a plaintiff under this subsection 18 automatically terminates the action upon the filing of the dismissal with the clerk.”). “[T]he 19 fact that [Plaintiff’s] filing was named as a ‘motion’ does not preclude its operative effect 20 as a notice of dismissal.” Ramirez-Ramos v. Ryan, No. CV-18-8086-PCT-NVW (JFM), 21 2019 WL 885624, at *6 (D. Ariz. Jan. 18, 2019), report and recommendation adopted, 22 23 24 1 Plaintiff filed a Notice of Appeal before this Court issued any order or entered a final judgment. Because 25 an appeal is plainly premature, this Court retains jurisdiction to proceed. See Ruby v. Secretary of the Navy, 365 F.2d 385 (9th Cir. 1966) (en banc) (the “improvident taking of an appeal cannot effectively 26 destroy the authority of the court below to proceed upon motions properly before it.”). “Where the deficiency in a notice of appeal, by reason of untimeliness ..., is clear to the district court, it may disregard 27 the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.” Id. at 389; Leibel v. City of Buckeye, 382 F. Supp. 3d 909, 916 (D. Ariz. 2019) (“A premature 28 1 WL 859690 (D. Ariz. Feb. 22, 2019) (“Although the document filed by [plaintiff] 2 || was denominated a Motion for Voluntary Dismissal rather than a notice of dismissal as 3 || specified in Rule 41(a)(1), the Court finds this distinction to be without legal significance 4 since the effect desired by [plaintiff] in filing the document with the Court was clearly to 5 ||have his claims dismissed without prejudice.”); see also 9 Fed. Prac. & Proc. Civ. § 2363, 6 || Voluntary Dismissal—Dismissal as a Matter of Right (3d ed.) (“It is merely a notice and 7 ||not a motion, although a notice in the form of a motion is sufficient.”). 8 Conclusion and Order 9 For the reasons explained, Plaintiff's Motion for Withdrawal (ECF No. 7), liberally 10 ||construed as a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a), is 11 ||} GRANTED. Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED as moot. The 12 || Clerk is directed to enter a judgment of dismissal and to close the file. 13 IT IS SO ORDERED. 14 15 |}Dated: November 12, 2020 16 ns my. L4\ Hon. Dana M. Sabraw 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3