Wiltcher v. MetLife Bank NA et al
ORDER denying as moot 6 Motion to Dismiss for Failure to State a Claim in light of Wiltcher's Notice of Voluntary Dismissal 7 . The Clerk of the Court is directed to terminate this action. (See document for full details). Signed by Judge G Murray Snow on 7/23/13. (LAD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Sandra Wiltcher, a single woman,
MetLife Bank NA, a Texas corporation,
named as Met Life Bank NA dba MetLife
Home Loans; Freddie Mac, a Virginia
corporation; Quality Loan Service, a
California corporation; McCarthy Holthus
& Levine, an Arizona professional
corporation; and Matthew A. Silverman, an
Pending before the Court is the Motion to Dismiss of Defendants McCarthy,
Holthus and Levine (“MHS”) and Matthew A. Silverman. (Doc. 6.) Also pending is
Plaintiff Sandra Wiltcher’s Motion to Dismiss (Voluntary Dismissal). (Doc. 7.)
Defendants MHS and Silverman object to Wiltcher’s Voluntary Dismissal. (Doc. 8.)
Defendants have filed neither an answer nor a summary judgment motion.
Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff has an absolute right to
voluntarily dismiss her action before the defendant serves an answer or moves for
summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). The
dismissal is effective on filing and no court order is required. Id. Here, none of the
Defendants have served an answer. Nor has any Defendant filed a motion for summary
judgment. MHS and Silverman assert, without citation, that Wiltcher “has no authority to
voluntary [sic] dismiss Complaint after an appearance has been made.” (Doc. 8 at 1.)
They argue that Wiltcher’s claims against them should be dismissed with prejudice.
However, their Motion to Dismiss under Rule 12(b)(6), as neither an answer nor a motion
for summary judgment, does not terminate Wiltcher’s Rule 41(a)(1) right of dismissal by
notice. Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970) (ordering district court to
dismiss pursuant to notice of voluntary dismissal though a hearing on defendants’
12(b)(6) motion to dismiss). The Court notes that even if Defendants’ Motion to Dismiss
had been considered on the merits, it would not necessarily result in Wiltcher’s claims
being dismissed with prejudice. “Dismissal of a pro se complaint without leave to amend
is proper only if it is absolutely clear that the deficiencies of the complaint would not be
cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).
Defendants’ Motion to Dismiss (Doc. 6) is therefore DENIED AS MOOT in light
of Wiltcher’s Notice of Voluntary Dismissal (Doc. 7). The Clerk of Court is directed to
terminate the action.
Dated this 23rd day of July, 2013.
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