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Pinson v. Norwood

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 10, 2009

JEREMY PINSON, PLAINTIFF,
v.
J. L. NORWOOD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge

ORDER RE PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL

On October 25, 2009, Plaintiff filed a "Motion to Voluntarily Dismiss" pursuant to Fed. R. Civ. P. 41. Fed. R. Civ. P. 41(a)(1) provides, in relevant part:

[T]he plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . . Unless the notice . . . states otherwise, the dismissal is without prejudice.

Here, no Defendant has served an answer or filed a motion for summary judgment. Accordingly, Plaintiff's "Motion to Voluntarily Dismiss" is properly construed as a notice of voluntary dismissal without prejudice pursuant to Fed. R. Civ. P. 41(a)(1).

"Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment." Concha v. London, 62 F.3d 1493, 1506 (9th Cir.1995) (citing Hamilton v. Shearson-Lehman American Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987)). "Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1)." Concha, 62 F.3d at 1506 (citing Miller v. Reddin, 422 F.2d 1264, 1265 (9th Cir. 1970)). "The dismissal is effective on filing and no court order is required." Concha, 62 F.3d at 1506. The filing of a notice of voluntary dismissal automatically terminates the action against the defendants who are the subject of the notice. Id. Unless the notice states otherwise, the dismissal is without prejudice to the plaintiff's right to file another action for the same cause against the same defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (11th Cir. 1987)). "Such a dismissal leaves the parties as though no action had been brought." Concha, 62 F.3d at 1506 (citing Brown v. Hartshorne Public School Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991)).

Because no defendant has filed an answer or a motion for summary judgment, Plaintiff properly has exercised his absolute right to dismiss his case without prejudice under Rule 41(a)(1).

ORDER

IT IS HEREBY ORDERED that this action is dismissed without prejudice.

20091110

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