(PS) Rossetti v. T65 Healthplans of Boca Raton, FL. et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 08/01/22 ORDERING that plaintiff's 10 Rebuttal is construed as a Notice of Voluntary Dismissal, DISMISSING action without prejudice per FRCP Procedure 41(a)(1)(A)(i) and FINDING AS MOOT the pending 6 Motion to Dismiss. CASE CLOSED (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR ROSSETTI,

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Plaintiff,

No. 2:22–cv–00955-TLN-CKD (PS)
ORDER

v.
T65 HEALPLANS OF BOCA RATON,
FL, et al.,
Defendants.

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This civil action, in which plaintiff proceeds pro se, was removed to federal court on June

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2, 2022. (ECF No. 1.) Plaintiff alleged a violation of the federal Telephone Consumer Protection

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Act (“TCPA”). Defendants filed a motion to dismiss, which is fully briefed. (ECF Nos. 6, 8, 9.)

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On July 5, 2022, plaintiff filed a “rebuttal” to the motion to dismiss, stating in part: “Plaintiff,

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however, wishes to dismiss this case without prejudice and proceed in California Superior Court,

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where it should have remained all along, but this time under California’s do not call statutes.”

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(ECF No. 10.)

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The court construes plaintiff’s filing as a notice of voluntary dismissal of this case without

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prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Federal Rule of Civil

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Procedure 41(a)(1)(A) provides that “the plaintiff may dismiss an action without a court order by

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filing . . . (i) a notice of dismissal before the opposing party serves either an answer or a motion

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for summary judgment . . . .” “Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to
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dismiss his action prior to service by the defendant of an answer or a motion for summary

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judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his

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action voluntarily by filing a notice of dismissal under Rule 41(a)(1). The dismissal is effective

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on filing and no court order is required...Unless otherwise stated, the dismissal is ordinarily

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without prejudice to the plaintiff’s right to commence another action for the same cause against

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the same defendants.” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995); see also United

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

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Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no action on the part of the

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court and divests the court of jurisdiction once the notice of voluntary dismissal is filed).

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Because defendants have not yet served an answer or motion for summary judgment in

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this case, plaintiff’s request for dismissal is effective without a court order. Accordingly, for

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purposes of clarity, IT IS HEREBY ORDERED that:

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1. The action is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i);

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2. The pending motion to dismiss (ECF No. 6) is DENIED AS MOOT; and

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3. The Clerk of Court is directed to CLOSE this case and vacate all dates.

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Dated: August 1, 2022
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/rossetti955.requestforvoluntarydismissal

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