Carolyn E. Miner v. JP Morgan Chase Bank, N.A.

Filing 25

ORDER DENYING AS MOOT 18 Motion to Dismiss; ORDERING Clerk to close this case in light of Plaintiff's Rule 41(a)(1) Voluntary Dismissal, signed by District Judge Anthony W. Ishii on 11/21/2016. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CAROLYN E. MINER, TRUSTEE OF
THE MILTONMINER FAMILY TRUST,
Plaintiff

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CASE NO. 1:16-CV-0626 AWI JLT
ORDER CLOSING CASE IN LIGHT OF
NOTICE OF DISMISSAL

v.
JPMORGAN CHASE BANK, N.A.,
Defendant
Plaintiff has filed a notice of dismissal without prejudice pursuant to Fed. Rule Civ. Proc.
41(a)(1)(A)(i). Doc. 24. The applicable rule states
(A) Without a Court Order…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….
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without
prejudice. But if the plaintiff previously dismissed any federal- or state-court action
based on or including the same claim, a notice of dismissal operates as an
adjudication on the merits.

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Fed. Rule Civ. Proc. 41(a). A plaintiff’s notice of dismissal under Rule 41(a)(1)(A) is effective

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immediately and does not require separate approval from the court. Commercial Space Mgmt. Co.

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v. Boeing Co., 193 F.3d 1074, 1077 (9th Cir. 1999).

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In this case, Defendant has filed a motion to dismiss but has not yet filed (or served) either

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an answer or a motion for summary judgment. Thus, Plaintiff’s notice of dismissal appears to be

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properly filed and self-executing. Plaintiff seeks to dismiss her claims without prejudice.

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Defendant’s briefing on the motion to dismiss does not state or suggest that Plaintiff has

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previously dismissed a prior action based on the same claim. See Doc. 18. Based on this history,

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it appears that the dismissal is properly without prejudice. This dismissal also renders Defendant’s

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motion to dismiss moot.

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Accordingly, IT IS HEREBY ORDERED that:

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Defendant’s Rule 12(b)(6) motion to dismiss (Doc. 18) is DENIED as moot.

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The Clerk of the Court shall close this case in light of Plaintiff’s Rule 41(a)(1) voluntary

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dismissal.

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IT IS SO ORDERED.
Dated: November 21, 2016
SENIOR DISTRICT JUDGE

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