Gutierrez v. Hamblet et al

Filing 19

ORDER CLOSING CASE In Light Of Notice Of Voluntary Dismissal With Prejudice (Doc.No. 16 ), signed by District Judge Anthony W. Ishii on 5/5/2015. CASE CLOSED.(Fahrney, E)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

NATIVIDAD GUTIERREZ,

9

Plaintiff

10
11

CASE NO. 1:15-CV-194 AWI SAB
ORDER CLOSING CASE IN LIGHT OF
NOTICE OF VOLUNTARY DISMISSAL
WITH PREJUDICE

v.
TIMOTHY PETER HAMBLET, et al.,

12

Defendants

(Doc. No. 16)

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On May 1, 2015, Plaintiff filed a notice of voluntary dismissal with prejudice. See Doc.
No. 11.
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.
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,

1
2
3

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

4
5

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

6

Because Plaintiff has exercised his right to voluntarily dismiss his complaint with prejudice under

7

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

8
9

Accordingly, IT IS HEREBY ORDERED that the Clerk shall CLOSE this case in light of
Plaintiff’s Rule 41(a)(1) voluntary dismissal with prejudice.

10
11

IT IS SO ORDERED.

12
13

Dated: May 5, 2015
SENIOR DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2