Burnham v. USA ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Christine M. Arguello Civil Action No. 23-cv-01244-CMA ARTHUR BURNHAM, Plaintiff, v. USA, MAGISTRATE KRISTEN MIX, and JEFFREY P. COLWELL, Defendants. ORDER DISMISSING CASE Proceeding pro se, Plaintiff Arthur Burnham initiated this action on May 17, 2023. (Doc. # 1). On May 22, 2023, United States Magistrate Judge Kristen L. Mix recused herself from further service in this matter because she is a named defendant, and the case was reassigned to United States Senior Judge Christine M. Arguello. (Docs. ## 3– 4). The following day, Judge Arguello issued an Order Directing Mr. Burnham to Cure Deficiencies (Doc. # 5). On June 20, 2023, Mr. Burnham filed a letter advising the court that he wished to “voluntarily dismiss 1:23cv01244.” (Doc. # 6 at 1). The court construes Plaintiff’s response as a notice of voluntary dismissal. Rule 41(a)(1) of the Federal Rules of Civil Procedure provides that “the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . .” In this case, no responsive pleading has been filed by any defendant. Further, a voluntary dismissal under Rule 41(a)(1) is effective immediately upon the filing of a written notice of dismissal, and no subsequent court order is necessary. See J. Moore, Moore's Federal Practice J] 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). Plaintiff's letter, construed as a notice of voluntary dismissal, therefore, closes the file as of June 20, 2023. See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is ORDERED that Plaintiff's letter (Doc. # 6) is liberally construed as a notice of voluntary dismissal. It is FURTHER ORDERED that the action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1) effective as of June 20, 2023. It is FURTHER ORDERED that all pending motions are denied as moot. The Clerk is directed to close this case. DATED: June 28, 2023 BY THE COURT: Senior United States District Judge