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John Cuong Nguyen v. R. Hill

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 21, 2010

JOHN CUONG NGUYEN,
PETITIONER,
v.
R. HILL, WARDEN OF FSP,
RESPONDENT.

The opinion of the court was delivered by: Gary A. Feess United States District Judge

ORDER DISMISSING PETITION WITHOUT PREJUDICE

Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on August 20, 2010, Respondent filed a motion to dismiss on September 15, 2010. Respondent has not yet filed an answer or a motion for summary judgment.

On December 8, 2010, Petitioner filed "Petitioner's Request for Voluntary Dismissal Without Prejudice Due to Mistake or Inadvertance" ("the motion"). The Court construes the motion as a notice of voluntary dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Rule 41(a)(1) permits automatic dismissal prior to the filing of an answer or a motion for summary judgment.

Accordingly, the Petition is dismissed without prejudice. See Fed. R. Civ. P. 41(a); see also Commercial Space Management Co. v. Boeing Co., 193 F.3d 1074, 1078 (9th Cir. 1999) (dismissal under Rule 41(a)(1) is effective on the filing of a notice of voluntary dismissal). Respondent's motion to dismiss is denied as moot.

LET JUDGMENT BE ENTERED ACCORDINGLY.

PRESENTED this 10th day of December, 2010, by:

/S/CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

20101221

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