One Beacon America Insurance Company v. B&L Casing Service, LLC et al

Filing 14

ORDER CLOSING CASE in Light of Plaintiff Rule 41(a) Notice of Dismissal Without Prejudice and Order on Motion to Dismiss, signed by District Judge Anthony W. Ishii on 12/21/2012. (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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B&L CASING SERVICE, LLC, et al.,
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Defendants.
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____________________________________)
ONE BEACON AMERICA
INSURANCE COMPANY,

1:12-CV-1676 AWI JLT
ORDER CLOSING CASE IN
LIGHT OF PLAINTIFF’ RULE
41(a) NOTICE OF DISMISSAL
WITHOUT PREJUDICE AND
ORDER ON MOTION TO
DISMISS
(Doc. Nos. 7, 12)

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Defendant B&L Casing has filed a motion to dismiss. Hearing on that motion is set for
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January 7, 2013. However, on December 20, 2012, Plaintiff filed a notice of dismissal without
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prejudice of this case pursuant to Federal Rule of Civil Procedure 41(a)(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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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.

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

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The defendants have neither filed nor served answers or motions for summary judgment.
Because Plaintiff has exercised its right to voluntarily dismiss its complaint without prejudice

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under Rule 41(a)(1), this case has terminated. See Wilson, 111 F.3d at 692. Defendant’s motion
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to dismiss will be denied as moot and the January 7 hearing will be vacated.

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Therefore, IT IS HEREBY ORDERED that:
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The Clerk is ordered to close this case in light of Plaintiff’s Rule 41(a)(1) dismissal

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without prejudice;
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The January 7, 2013, hearing on Defendant’s motion to dismiss is VACATED; and

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Defendant’s motion to dismiss (Doc. No. 7) is DENIED as moot.

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IT IS SO ORDERED.

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Dated:
ciem0h

December 21, 2012
UNITED STATES DISTRICT JUDGE

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