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John Ray Dynes v. Cheryl Blair

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 3, 2010

JOHN RAY DYNES,
PLAINTIFF,
v.
CHERYL BLAIR, ET AL.,
DEFENDANTS.

ORDER CLOSING THE CASE DUE TO VOLUNTARY DISMISSAL WITHOUT PREJUDICE (Doc. 9)

On November 29, 2010, Plaintiff John Ray Dynes ("Plaintiff") filed a request for dismissal of the case. Although not stated in the notice, the Court construes it as one made pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

Rule 41(a)(1)(A)(i) 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 . . . ." Fed. R. Civ. P. 41(a)(1)(A)(I). InWilson v. City of San Jose, the Ninth Circuit explained:

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 motion for summary judgment. A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal 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 required. . . . The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants. Such a dismissal leaves the parties as though no action had been brought.

Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (internal citations omitted).

Plaintiff submits his request for voluntary dismissal before the defendants have been served notice of the action. Because Plaintiff has exercised his right to voluntarily dismiss the complaint under Rule 41(a)(1)(A)(i), this case has terminated. See Wilson, 111 F.3d at 692.

Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close this case in light of Plaintiff's Rule 41(a)(1)(A)(i) requested dismissal without prejudice.

IT IS SO ORDERED.

0jh02o

UNITED STATES MAGISTRATE JUDGE

20101203

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