UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 21, 2010
JOHN CUONG NGUYEN,
R. HILL, WARDEN OF FSP,
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
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