Kitchens v. Tyler et al

Filing 7

ORDER CLOSING CASE In Light of Notice of Voluntary Dismissal with Prejudice, signed by District Judge Anthony W. Ishii on 8/25/14. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LANARD KITCHENS,

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CASE NO. 1:14-CV-299 AWI GSA

Plaintiffs,
ORDER CLOSING CASE IN LIGHT OF
NOTICE OF VOLUNTARY DISMISSAL
WITH PREJUDICE

v.
JOHN W. TYLAR JOSEPH MACHADO;
KEITH FAGUNDES; JENNIFER
GARCIA; STEPHEN GIRARDOT,

(Doc. No. 6)

Defendants.

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On August 18, 2014, Plaintiff filed a motion for voluntary dismissal. See Doc. No. 6.
Rule 41(a)(1), in relevant part, reads:
(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:
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. Unless otherwise stated, the dismissal is ordinarily without prejudice to the
plaintiff's right to commence another action for the same cause against the same
defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930,

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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

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in this case and there is no indication on the record that any such answers or summary judgment

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motions have been served. Because Plaintiff has exercised his right to voluntarily dismiss his

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

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Plaintiff did not specify whether or not he seeks a dismissal with or without prejudice, the

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dismissal is granted without prejudice. Id.
Accordingly, IT IS HEREBY ORDERED that the Clerk shall CLOSE this case in light of

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Plaintiff’s Rule 41(a)(1) voluntary dismissal without prejudice.

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IT IS SO ORDERED.
Dated: August 25, 2014
SENIOR DISTRICT JUDGE

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