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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sandra Wiltcher, a single woman,
Plaintiff,

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ORDER

v.

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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,

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Defendants.

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Pending before the Court is the Motion to Dismiss of Defendants McCarthy,

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Holthus and Levine (“MHS”) and Matthew A. Silverman. (Doc. 6.) Also pending is

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Plaintiff Sandra Wiltcher’s Motion to Dismiss (Voluntary Dismissal). (Doc. 7.)

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Defendants MHS and Silverman object to Wiltcher’s Voluntary Dismissal. (Doc. 8.)

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Defendants have filed neither an answer nor a summary judgment motion.

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Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff has an absolute right to

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voluntarily dismiss her action before the defendant serves an answer or moves for

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summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). The

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dismissal is effective on filing and no court order is required. Id. Here, none of the

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Defendants have served an answer. Nor has any Defendant filed a motion for summary

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judgment. MHS and Silverman assert, without citation, that Wiltcher “has no authority to

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voluntary [sic] dismiss Complaint after an appearance has been made.” (Doc. 8 at 1.)

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They argue that Wiltcher’s claims against them should be dismissed with prejudice.

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However, their Motion to Dismiss under Rule 12(b)(6), as neither an answer nor a motion

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for summary judgment, does not terminate Wiltcher’s Rule 41(a)(1) right of dismissal by

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notice. Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970) (ordering district court to

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dismiss pursuant to notice of voluntary dismissal though a hearing on defendants’

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12(b)(6) motion to dismiss). The Court notes that even if Defendants’ Motion to Dismiss

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had been considered on the merits, it would not necessarily result in Wiltcher’s claims

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being dismissed with prejudice. “Dismissal of a pro se complaint without leave to amend

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is proper only if it is absolutely clear that the deficiencies of the complaint would not be

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cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).

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Defendants’ Motion to Dismiss (Doc. 6) is therefore DENIED AS MOOT in light

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of Wiltcher’s Notice of Voluntary Dismissal (Doc. 7). The Clerk of Court is directed to

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terminate the action.

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Dated this 23rd day of July, 2013.

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