ORDER CLOSING CASE IN LIGHT OF PETITIONER'S
RULE 41(a) NOTICE OF DISMISSAL
On October 17, 2012, Plaintiff filed a request to withdraw his 28 U.S.C. § 2254 petition for habeas corpus. Although Petitioner cites no rule, the Court construes the request as a notice of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Rule 41(a)(1), in relevant part, reads:
(A) . . . 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) Unless the notice or stipulation states otherwise, the dismissal is without prejudice.
In Wilson 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. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). 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. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). 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. Concha, 62 F.2d at 1506. 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. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id.
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).
No answers or motions for summary judgment have been filed in this case and it appears that no such answers or summary judgment motions have been served. Because Petitioner has exercised his right to voluntarily dismiss his complaint under Rule 41(a)(1), 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 Petitioner's Rule 41(a)(1)(A)(i) requested dismissal.
UNITED STATES DISTRICT JUDGE
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