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Foy v. Meece

United States District Court, Ninth Circuit

July 5, 2013

TYRELL FOY, Plaintiff,
v.
RIPON POLICE OFFICER STEPHEN MEECE, Defendant.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff Tyrell Foy ("plaintiff"), who is proceeding without counsel and in forma pauperis, filed his complaint on November 14, 2012.[1] (Compl., ECF No. 1).

On June 28, 2013, plaintiff filed a document styled as a "Voluntary Dismissal of Civil Suit." (ECF No. 28.) The undersigned construes this document as a Notice of Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

Federal Rule of Civil Procedure 41(a)(1)(A) provides that: "... 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." Voluntary dismissal under this rule requires no action on the part of the court and divests the court of jurisdiction upon the filing of the notice of voluntary dismissal. See, e.g., United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA , 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)).

In this case to date, defendant has filed neither an answer nor a motion for summary judgment. Accordingly, although plaintiff's Notice of Voluntary Dismissal (ECF No. 28) was effective upon filing and without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), for the sake of clarity, this order confirms that this case was deemed "dismissed" without prejudice upon such filing and the Clerk of the Court is thus directed to close this case and to vacate all future dates.

Accordingly, IT IS HEREBY ORDERED that:

In light of plaintiff's "Voluntary Dismissal of Civil Suit" (ECF No. 28), which the undersigned construes as a Notice of Voluntary Dismissal that was effective upon filing and without a court order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), this case is deemed dismissed without prejudice and the Clerk of the Court is directed to close this case and vacate all future dates.

IT IS SO ORDERED.


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