Allstate Insurance Company v. McIntosh et al

Filing 24

ORDER CLOSING the Case due to Voluntary Dismissal signed by Chief Judge Anthony W. Ishii on 12/24/2009. CASE CLOSED. (Bradley, A)

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 23, 2009, Plaintiff filed a request for dismissal of this complaint against Tamara Ann Ashley with prejudice, and Plaintiff filed a request for dismissal of this complaint against Jeanie McIntosh without prejudice. Civil Procedure 41(a)(1). In Wilson v. City of San Jose, the Ninth Circuit explained: Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 60910 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is This notice is made pursuant to Federal Rule of ALLSTATE INSURANCE COMPANY, ) ) Plaintiff, ) ) v. ) ) JEANIE MCINTOSH and TAMARA ) ANN ASHLEY, ) ) Defendants. ) ____________________________________) NO. 1:08-CV-01765-AWI-DLB ORDER CLOSING THE CASE DUE TO VOLUNTARY DISMISSAL

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. DavenportHarris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). No answers to Plaintiff's complaint and no motions for summary judgment have been filed in this case and it appears that no such answers or summary judgment motions have been served. Because Plaintiff has exercised its right to voluntarily dismiss the complaint under Rule 41(a)(1), this case has terminated. See Wilson, 111 F.3d at 692. Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close this case in light of Plaintiff's Rule 41(a)(1) requested dismissal.

IT IS SO ORDERED. Dated: 0m8i78 December 24, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

2