Brown et al v. Fresno Unified School District Educational Facilities Corporation

Filing 15

ORDER CLOSING CASE in Light of Plaintiff's 14 Rule 41(a) Notice of Dismissal, signed by District Judge Anthony W. Ishii on 4/1/2013. CASE CLOSED. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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FRESNO UNIFIED SCHOOL
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DISTRICT EDUCATIONAL
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FACILITIES CORPORATION,
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Defendant.
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____________________________________)
HORACE CHESTER BROWN,
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1:12-CV-1597 AWI SMS
ORDER CLOSING CASE IN
LIGHT OF PLAINTIFF’S
RULE 41(a) NOTICE OF
DISMISSAL
(Doc. Nos. 13, 14)

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On March 22, 2013, Plaintiff filed a notice of voluntary dismissal without prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).1

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Rule 41(a)(1), in relevant part, reads:

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(A) . . . 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. . . . (B) Unless the notice or stipulation states otherwise, the
dismissal is without prejudice.

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In Wilson v. City of San Jose, the Ninth Circuit explained:

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The original complaint listed Sheila Brown as a plaintiff. However, the second amended
complaint does not include Sheila Brown as a plaintiff. Because the amended complaint dropped
Sheila Brown as a party in this case, the only plaintiff is Horace Brown. See Wynn v. Dallas
Hous. Auth., 409 Fed. Appx. 744, 746 (5th Cir. Jan. 27, 2011).

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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 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.

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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997).

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No answers to Plaintiff’s complaint and no motions for summary judgment have been

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filed in this case and it appears that no such answers or summary judgment motions have been

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served. Because Plaintiff has exercised his right to voluntarily dismiss his complaint under Rule

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41(a)(1), this case has terminated. See Wilson, 111 F.3d at 692.

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Therefore, IT IS HEREBY ORDERED that:

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dismissal without prejudice; and

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The Clerk is ordered to close this case in light of Plaintiff’s Rule 41(a)(1)(i) requested

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The March 6, 2013, Findings and Recommendations (Doc. No. 13) are now moot.

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IT IS SO ORDERED.

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Dated:
ciem0h

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April 1, 2013
SENIOR DISTRICT JUDGE

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