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Igor Chepel v. Judge James Mize of the Sacramento Superior Court; Irena Chepel; and

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 26, 2012

IGOR CHEPEL, PLAINTIFF,
v.
JUDGE JAMES MIZE OF THE SACRAMENTO SUPERIOR COURT; IRENA CHEPEL; AND DOES 1 THROUGH 20, DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER RE: VOLUNTARY DISMISSAL

A hearing on defendants' respective motions seeking the dismissal of plaintiff's claims is presently set for June 28, 2012, and those motions have been fully briefed for weeks.*fn1

In consideration of plaintiff's last-minute ex parte request, the hearing on defendants' motions had been continued from June 7, 2012, on the basis of plaintiff's representations that he has serious health problems. (Order, June 6, 2012, Dkt. No. 23.) Despite the grant of plaintiff's requested continuance, plaintiff filed, on June 22, 2012, a notice of voluntary dismissal without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) (Dkt. No. 26).*fn2 Plaintiff seeks dismissal of his case without prejudice on the basis of his health problems.

Although the court is somewhat skeptical of plaintiff's basis for dismissal in light of the timing of the notice, that concern is of no matter here.*fn3 A party may voluntarily dismiss his or her case pursuant to Rule 41(a)(1)(A)(i) without a court order so long as an answer or motion for summary judgment has not been filed, and a self-executing notice of voluntary dismissal under such circumstances divests the court of jurisdiction over the case. See Fed. R. Civ. P. 41(a)(1)(A)(i); see also United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008) (stating that the filing of a notice of voluntary dismissal "itself closes the file," and that the "district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them"). Here, neither defendant has filed an answer or a motion for summary judgment. As a result, plaintiff's notice effectuated the closure of this case.

Accordingly, IT IS HEREBY ORDERED that: 1. Pursuant to plaintiff's notice of voluntary dismissal filed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), the Clerk of Court is directed to dismiss this case without prejudice.

2. The Clerk of Court is directed to close this case and vacate all dates, including the June 28, 2012 hearing on defendants' motions to dismiss and/or strike plaintiff's claims.

IT IS SO ORDERED.


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