Ruiz v. Wells Fargo Bank, N.A. et al

Filing 58

ORDER Directing Clerk of the Court to TERMINATE Defendant Wells Fargo Bank, N.A. as a Party in This Action Pursuant to Fed. R. Civ. P. 41(a) 56 , signed by Magistrate Judge Stanley A. Boone on 7/21/17. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DANIEL S. RUIZ,
Plaintiff,

12
13
14
15

Case No. 1:17-cv-00321-LJO-SAB
ORDER DIRECTING CLERK OF THE
COURT TO TERMINATE DEFENDANT
WELLS FARGO BANK, N.A. AS A
PARTY IN THIS ACTION PURSUANT TO
FED. R. CIV. P. 41(a)

v.
WELLS FARGO, N.A., et al.,
Defendants.

(ECF No. 56)

16
17
18
19
20
21
22
23
24
25
26
27

On July 20, 2017, Plaintiff filed a notice of voluntary dismissal with prejudice as to
Defendant Wells Fargo Bank, N.A. only.
“[U]nder Rule 41(a)(1)(A)(i), ‘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.’ ”
Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999)
(quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Rule 41(a) of the
Federal Rules of Civil Procedure also allows a party to dismiss some or all of the defendants or
claims in an action through a Rule 41(a) notice. Wilson v. City of San Jose, 111 F.3d 688, 692
(9th Cir. 1997). The Ninth Circuit has held that Rule 41(a) allows a plaintiff to dismiss without a
court order any defendant who has yet to serve an answer or motion for summary judgment.
Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993).

28

1

“[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the

1

2 parties are left as though no action had been brought, the defendant can’t complain, and the
3 district court lacks jurisdiction to do anything about it.” Commercial Space Mgmt. Co., Inc., 193
4 F.3d at 1078. Here, Defendant Wells Fargo Bank, N.A. has filed a motion to dismiss, but the
5 Ninth Circuit has held that a pending motion to dismiss is not equivalent to an answer or motion
6 for summary judgment. Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970).
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is DIRECTED to

7

8 terminate Defendant Wells Fargo Bank, N.A. in this action.
9
10

IT IS SO ORDERED.

11 Dated:

July 21, 2017
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2