(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARTHUR ROSSETTI, 12 13 14 15 Plaintiff, No. 2:22–cv–00955-TLN-CKD (PS) ORDER v. T65 HEALPLANS OF BOCA RATON, FL, et al., Defendants. 16 17 This civil action, in which plaintiff proceeds pro se, was removed to federal court on June 18 2, 2022. (ECF No. 1.) Plaintiff alleged a violation of the federal Telephone Consumer Protection 19 Act (“TCPA”). Defendants filed a motion to dismiss, which is fully briefed. (ECF Nos. 6, 8, 9.) 20 On July 5, 2022, plaintiff filed a “rebuttal” to the motion to dismiss, stating in part: “Plaintiff, 21 however, wishes to dismiss this case without prejudice and proceed in California Superior Court, 22 where it should have remained all along, but this time under California’s do not call statutes.” 23 (ECF No. 10.) 24 The court construes plaintiff’s filing as a notice of voluntary dismissal of this case without 25 prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Federal Rule of Civil 26 Procedure 41(a)(1)(A) provides that “the plaintiff may dismiss an action without a court order by 27 filing . . . (i) a notice of dismissal before the opposing party serves either an answer or a motion 28 for summary judgment . . . .” “Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to 1 1 dismiss his action prior to service by the defendant of an answer or a motion for summary 2 judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his 3 action voluntarily by filing a notice of dismissal under Rule 41(a)(1). The dismissal is effective 4 on filing and no court order is required...Unless otherwise stated, the dismissal is ordinarily 5 without prejudice to the plaintiff’s right to commence another action for the same cause against 6 the same defendants.” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995); see also United 7 States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th 8 Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no action on the part of the 9 court and divests the court of jurisdiction once the notice of voluntary dismissal is filed). 10 Because defendants have not yet served an answer or motion for summary judgment in 11 this case, plaintiff’s request for dismissal is effective without a court order. Accordingly, for 12 purposes of clarity, IT IS HEREBY ORDERED that: 13 14 1. The action is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i); 15 2. The pending motion to dismiss (ECF No. 6) is DENIED AS MOOT; and 16 3. The Clerk of Court is directed to CLOSE this case and vacate all dates. 17 Dated: August 1, 2022 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 2/rossetti955.requestforvoluntarydismissal 26 27 28 2

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