ORDER CLOSING CASE IN LIGHT OF PLAINTIFF' RULE
41(a) NOTICE OF DISMISSAL WITHOUT PREJUDICE AND
ORDER ON MOTION TO DISMISS
(Doc. Nos. 7, 12)
Defendant B&L Casing has filed a motion to dismiss. Hearing on that motion is set for January 7, 2013. However, on December 20, 2012, Plaintiff filed a notice of dismissal without prejudice of this case pursuant to Federal Rule of Civil Procedure 41(a)(1). 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.
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).
The defendants have neither filed nor served answers or motions for summary judgment.
Because Plaintiff has exercised its right to voluntarily dismiss its complaint without prejudice under Rule 41(a)(1), this case has terminated. See Wilson, 111 F.3d at 692. Defendant's motion to dismiss will be denied as moot and the January 7 hearing will be vacated.
Therefore, IT IS HEREBY ORDERED that:
1. The Clerk is ordered to close this case in light of Plaintiff's Rule 41(a)(1) dismissal without prejudice;
2. The January 7, 2013, hearing on Defendant's motion to dismiss is VACATED; and
3. Defendant's motion to dismiss (Doc. No. 7) is DENIED as moot.