Rosene et al v. American Brokers Conduit et al

Filing 13

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/10/12 ORDERING that this action be DISMISSED without prejudice. CASE CLOSED. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD G. ROSENE;
SHAUN L. ROSENE,

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Plaintiffs,

No. CIV S-12-107 KJM EFB PS

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vs.
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AMERICAN BROKERS CONDUIT;
PLACER TITLE COMPANY;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
DEFAULT RESOLUTIONS NETWORK;
POWER DEFAULT SERVICES, INC.;
and DOES 1 through 520, inclusive,

ORDER

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Defendants.
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This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants

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Mortgage Electronic Registration Systems, Inc., Power Default Services, Inc, and Placer Title

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Company move to dismiss plaintiff’s complaint. Dckt. Nos. 5, 9. The hearings on the motions

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were continued to April 25, 2012 due to plaintiffs’ failure to respond thereto, and plaintiffs were

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ordered to show cause why this action should not be dismissed for lack of prosecution and/or for

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failure to comply with court orders and this court’s Local Rules. Dckt. Nos. 10, 11.

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However, on April 6, 2012, plaintiffs filed a request to voluntarily dismiss this action

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without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). Dckt. No. 12. Plaintiffs

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contend that they are currently in review for a loan modification which may resolve the issues in

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dispute in this case, and that if the loan modification does not resolve those issues, they desire to

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obtain counsel before re-commencing the action. Id. at 2.

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Because defendants have not filed either an answer or a motion for summary judgment,

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the court construes plaintiff’s April 6, 2012 request to voluntarily dismiss this action as a notice

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of dismissal made pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(I), which deprives

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this court of jurisdiction over the action. See Fed. R. Civ. P. 41(a)(1)(A) (“[T]he plaintiff may

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dismiss an action without a court order by filing . . . (I) a notice of dismissal before the opposing

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party serves either an answer or a motion for summary judgment . . . .”); see also Fed. R. Civ. P.

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41(a)(1)(B) (“Unless the notice [of dismissal] states otherwise, the dismissal is without

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prejudice.”). Dismissal under this rule requires no action on the part of the court and divests the

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court of jurisdiction once the notice of voluntary dismissal is filed. See, e.g., United States v.

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Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir.

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2008). In light of that dismissal, the Clerk of Court is directed to close this case.

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SO ORDERED.
DATED: April 10, 2012.

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