Menor v. Universal American Mortgage Company of California et al

Filing 29

ORDER signed by Magistrate Judge Kendall J. Newman on 1/15/14 ORDERING that this action is DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). The Clerk is directed to close this case and vacate all dates. CASE CLOSED (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROSITA M. MENOR, 12 13 14 15 16 17 No. 2:13-cv-2232-GEB-KJN PS Plaintiff, v. ORDER UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA, et al., Defendants. On December 23, 2013, the court granted a motion to dismiss plaintiff’s claims for lack 18 of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by 19 defendants Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, 20 formerly known as Countrywide Home Loan Servicing LP (“Bank of America”); Bank of New 21 York Mellon (“Bank of New York”); and Recontrust Company, N.A. (“Recontrust”). (ECF No. 22 25.) The court also confirmed, based on plaintiff’s motion (ECF No. 12) and plaintiff’s request 23 on the record at the December 19, 2013 motion hearing, that defendant Recontrust and non- 24 moving defendant Universal American Mortgage Company of California (“Universal American”) 25 were voluntarily dismissed from the action without prejudice pursuant to Federal Rule of Civil 26 Procedure 41(a)(1)(A)(i). (Id.) Additionally, the court granted plaintiff leave to file, within 30 27 days, either (a) a third amended complaint asserting claims against defendants Bank of America 28 and Bank of New York only or (b) a request for voluntary dismissal of the action without 1 1 prejudice. (Id.) 2 Subsequently, on January 13, 2014, plaintiff filed a motion to dismiss her claims against 3 Bank of America and Bank of New York without prejudice. (ECF No. 26.) Plaintiff requests 4 dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2), which concerns lack of personal 5 jurisdiction and does not appear to be applicable in this case. Nevertheless, in light of plaintiff’s 6 pro se status and her stated desire to dismiss her claims against the only remaining defendants, the 7 court instead liberally construes plaintiff’s motion as a notice of voluntary dismissal of the case 8 without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Federal Rule of Civil Procedure 41(a)(1)(A) provides that “the plaintiff may dismiss an 9 10 action without a court order by filing . . . (i) a notice of dismissal before the opposing party serves 11 either an answer or a motion for summary judgment . . . .” “Under Rule 41(a)(1), a plaintiff has 12 an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer 13 or a motion for summary judgment. Even if the defendant has filed a motion to dismiss, the 14 plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1). 15 The dismissal is effective on filing and no court order is required...Unless otherwise stated, the 16 dismissal is ordinarily without prejudice to the plaintiff’s right to commence another action for 17 the same cause against the same defendants.” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 18 1995); see also United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 19 545 F.3d 1134, 1145 (9th Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no 20 action on the part of the court and divests the court of jurisdiction once the notice of voluntary 21 dismissal is filed). 22 Here, because remaining defendants Bank of America and Bank of New York have not 23 yet served an answer or a motion for summary judgment in this case, plaintiff’s request for 24 dismissal is effective without a court order. 25 Nevertheless, for purposes of clarity, IT IS HEREBY ORDERED that: 26 1. The action is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil 27 28 Procedure 41(a)(1)(A)(i). //// 2 1 2. The Clerk of Court is directed to close this case and vacate all dates. 2 IT IS SO ORDERED. 3 Dated: January 15, 2014 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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