Jones, Blechman, Woltz & Kelly, PC v. Babakaeva

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1956
JONES, BLECHMAN, WOLTZ & KELLY, PC,
Plaintiff - Appellee,
v.
TATYANA A. BABAKAEVA,
Defendant – Appellant,
and
NIKOLAI I. SINKINE,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:08-cv-00123-RAJ-JEB)
Submitted: March 30, 2010 Decided: April 21, 2010
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tatyana A. Babakaeva, Appellant Pro Se. Raymond Bernard Bacon,
QUADROS & ASSOCIATES, PC, Newport News, Virginia; Lawrence Hoyt
Glanzer, ROUSSOS LASSITER GLANZER & MARCUS, PLC, Norfolk,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tatyana A. Babakaeva seeks to appeal the district
court’s order, entered after a hearing, denying her motion to
strike Plaintiff’s Fed. R. Civ. P. 41(a)(1)(A)(i) notice of
voluntary dismissal. In its order, the district court stated
that “[t]he dismissal of the case remains effective as of the
date of the Notice of Voluntary Dismissal.” We dismiss the
appeal.
Babakaeva did not file an answer or a motion for
summary judgment prior to the filing of the Rule 41(a)(1)(A)(i)
notice. Therefore, the voluntary dismissal became effective
upon filing of the notice with the clerk of the district court.
At that point, the action terminated, and the district court was
divested of jurisdiction. See In re Matthews, 395 F.3d 477, 480
(4th Cir. 2005); Marex Titanic, Inc. v. The Wrecked & Abandoned
Vessel, 2 F.3d 544, 546 (4th Cir. 1993). Accordingly, the
district court was without authority to conduct the hearing or
to enter the order Babakaeva seeks to appeal, and that order is
void. See Safeguard Business Sys., Inc. v. Hoeffel, 907 F.2d
861 (8th Cir. 1990). The order being void, the voluntary
dismissal remains effective as of the date the notice of
dismissal was filed in the district court.
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We accordingly deny leave to proceed in forma pauperis
and dismiss the appeal. We dispense with oral argument because
the facts and legal contentions are adequately addressed in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
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