UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 17, 2013
JERRY JENE SIMPSON, JR.,
STACY ANN FERGUSON,
(Docs. 5 and 6)
ORDER ON PLAINTIFF'S REQUEST TO DISMISS AND ORDER ON FINDINGS AND RECOMMENDATIONS
Plaintiff, Jerry Jean Simpson, Jr. ("Plaintiff"), appearing pro se and in forma pauperis, filed the instant civil complaint on October 24, 2012. (Doc. 1). Plaintiff alleged patent infringement against Defendant, Stacy Ann Ferguson, ("Defendant").
On November 30, 2012, the Magistrate Judge issued Findings and Recommendations recommending that Plaintiff's Complaint be dismissed without Leave to Amend on the basis that the case was duplicative of a prior case filed by Plaintiff in this district. See, Simpson v. Interscope Giffen A & M Records, a Division of UMG Recordings, Inc., et al., 09-cv-1931 AWI DLB (E.D. Cal.). The Findings and Recommendations were served on Plaintiff and contained notice that any objections were to be filed within thirty (30) days. On December 21, 2012, Plaintiff filed a document entitled, "Plaintiff's Motion to Dismiss or Recommendation to Proceed Without Stating a Claim." (Doc. 6). The Court construes this document as a voluntary dismissal under Rule 41(a)(1)(A)(i).
When there have been no answers or motions for summary judgment served, a plaintiff's filed Rule 41(a)(1)(A)(i) motion terminates the action automatically and without the need for court order. See Fed. R. Civ. Pro. 41(a)(1)(A)(i); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Here, because there have been no answers or summary judgment motions in this case, Plaintiff's motion has terminated this matter. The Court will formally close this now terminated case and decline to adopt the Findings and Recommendation as it is now moot.
Accordingly, IT IS HEREBY ORDERED that:
1. The Court declines to adopt Findings and Recommendations dated November 30, 2012 (Doc. No. 5) because it is moot; and
2. The clerk shall close this case in light of Plaintiff's Rule 41(a)(1) voluntary dismissal (Doc. No. 6).
IT IS SO ORDERED.
SENIOR DISTRICT JUDGE
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