Wiltcher v. MetLife Bank NA et al

Filing 9

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)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sandra Wiltcher, a single woman, Plaintiff, 10 11 ORDER v. 12 No. CV-13-00409-PHX-GMS 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 individual, 13 14 15 16 Defendants. 17 18 19 Pending before the Court is the Motion to Dismiss of Defendants McCarthy, 20 Holthus and Levine (“MHS”) and Matthew A. Silverman. (Doc. 6.) Also pending is 21 Plaintiff Sandra Wiltcher’s Motion to Dismiss (Voluntary Dismissal). (Doc. 7.) 22 Defendants MHS and Silverman object to Wiltcher’s Voluntary Dismissal. (Doc. 8.) 23 Defendants have filed neither an answer nor a summary judgment motion. 24 Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff has an absolute right to 25 voluntarily dismiss her action before the defendant serves an answer or moves for 26 summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). The 27 dismissal is effective on filing and no court order is required. Id. Here, none of the 28 Defendants have served an answer. Nor has any Defendant filed a motion for summary 1 judgment. MHS and Silverman assert, without citation, that Wiltcher “has no authority to 2 voluntary [sic] dismiss Complaint after an appearance has been made.” (Doc. 8 at 1.) 3 They argue that Wiltcher’s claims against them should be dismissed with prejudice. 4 However, their Motion to Dismiss under Rule 12(b)(6), as neither an answer nor a motion 5 for summary judgment, does not terminate Wiltcher’s Rule 41(a)(1) right of dismissal by 6 notice. Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970) (ordering district court to 7 dismiss pursuant to notice of voluntary dismissal though a hearing on defendants’ 8 12(b)(6) motion to dismiss). The Court notes that even if Defendants’ Motion to Dismiss 9 had been considered on the merits, it would not necessarily result in Wiltcher’s claims 10 being dismissed with prejudice. “Dismissal of a pro se complaint without leave to amend 11 is proper only if it is absolutely clear that the deficiencies of the complaint would not be 12 cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). 13 Defendants’ Motion to Dismiss (Doc. 6) is therefore DENIED AS MOOT in light 14 of Wiltcher’s Notice of Voluntary Dismissal (Doc. 7). The Clerk of Court is directed to 15 terminate the action. 16 Dated this 23rd day of July, 2013. 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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