Bracken v. Duran, et al.,

Filing 18

ORDER CLOSING the Case Based Upon Voluntary Dismissal, signed by Magistrate Judge Jennifer L. Thurston on 8/9/17. CASE CLOSED. (Marrujo, C)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN BRACKEN, 12 Plaintiff, 13 v. 14 Case No. 1:17-cv-00306-AWI-JLT (PC) ORDER CLOSING THE CASE BASED UPON PLAINTIFF’S VOLUNTARY DISMISSAL (Doc. 16) DURAN, et al., 15 16 Defendants. On June 20, 2017, the Court screened the Complaint and dismissed it with leave to amend 17 to allow Plaintiff to cure the deficiencies noted; alternatively, Plaintiff could file a notice of 18 voluntary dismissal. (Doc. 15.) In response, Plaintiff filed a notice that he is “not ready to go 19 through with” this action until he goes “home and find (sic) me a lawyer (sic) will represent me. 20 Bye thank you and God bless.” (Doc. 16.) It appeared that Plaintiff intends to voluntarily dismiss 21 this action. However, because the filing was a bit vague, the Court ordered the plaintiff to file a 22 statement indicating whether he wished to voluntarily dismiss the action. (Doc. 17.) That order 23 warned that if Plaintiff failed to file a statement, the Court would presume that he did intend to 24 dismiss the matter without prejudice under Rule 41. (Doc. 17.) The plaintiff did not respond. 25 26 27 28 The Ninth Circuit has 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 1 1 2 3 4 5 6 7 8 9 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 plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). 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, 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). 10 No defendant has appeared in this case. Because Plaintiff has exercised his right to 11 voluntarily dismiss the complaint under Rule 41(a)(1), this case has terminated. See Wilson, 111 12 F.3d at 692. Therefore, the Clerk is directed to close this case in light of Plaintiff’s Rule 13 41(a)(1)(i) requested dismissal without prejudice. 14 15 16 17 IT IS SO ORDERED. Dated: August 9, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?