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Alex George Peros v. Nutribiotic

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 29, 2011

ALEX GEORGE PEROS,
PLAINTIFF,
v.
NUTRIBIOTIC, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION TO VOLUNTARILY DISMISS COMPLAINT WITHOUT PREJUDICE (DOC. 25)

On December 21, 2010, Plaintiff filed a complaint for negligence, willful and wanton misconduct, strict liability in tort, and breach of implied warranty concerning a Vitamin C supplement produced by Defendant Nutribiotic, Inc. Doc. 2. Plaintiff is proceeding in forma pauperis. Doc. 21. On March 18, 2011, pursuant to the screening statute, 28 U.S.C. § 1915(e)(2)(B)(ii), Plaintiff's complaint was dismissed with leave to amend, with any amended complaint due on or before April 21, 2011. Doc. 22. On April 18, 2011, instead of filing an amended complaint, Plaintiff moved to dismiss his own complaint without prejudice. Doc. 25. Federal Rule of Civil Procedure 41(a)(1) provides the circumstances in which a Plaintiff may voluntarily dismiss a complaint without a court order:

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, 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; or (ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

Here, Plaintiff's request for voluntary dismissal may be granted without leave of court because it was made before any opposing party served either an answer or a motion for summary judgment. As the court has no knowledge of Plaintiff previously dismissing any other court action based on or including the same claim, the dismissal shall be without prejudice.

CONCLUSION

Plaintiff's motion to voluntarily dismiss his complaint WITHOUT PREJUDICE is GRANTED.

IT IS SO ORDERED.

20110429

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