Scamazzo v. Plumley

Filing 11

ORDER TERMINATING AS MOOT 10 Motion to Withdraw Petition and DIRECTING Clerk of Court to CLOSE CASE signed by Magistrate Judge Erica P. Grosjean on 7/28/2017. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUKE A. SCARMAZZO, Petitioner, 12 13 14 15 Case No. 1:17-cv-00939- EPG-HC ORDER TERMINATING AS MOOT MOTION TO WITHDRAW PETITION AND DIRECTING CLERK OF COURT TO CLOSE CASE v. PLUMLEY, (ECF No. 10) Respondent. 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. 19 On July 27, 2017, Petitioner filed the instant motion to withdraw the petition. (ECF No. 20 10). Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, “the plaintiff may 21 dismiss an action without a court order by filing . . . a notice of dismissal before the opposing 22 party serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). 23 Voluntary dismissal under this rule requires no action on the part of the court and divests the 24 court of jurisdiction upon the filing of the notice of voluntary dismissal. See United States v. 475 25 Martin Lane, 545 F.3d 1134, 1145 (9th Cir. 2008) (describing consequences of voluntary 26 dismissals pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)). 27 In this case, Respondent has not served either an answer or a motion for summary 28 judgment. Thus, Petitioner’s notice of dismissal was effective upon filing and without a court 1 1 order pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). For the sake of clarity, in light 2 of the notice of dismissal, IT IS HEREBY ORDERED that the motion to withdraw the petition is 3 TERMINATED as moot and the Clerk of the Court is DIRECTED to CLOSE the case. 4 5 6 IT IS SO ORDERED. Dated: July 28, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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