Harwood Investment Company et al v. Wells Fargo Bank, National Association et al

Filing 37

ORDER by Judge Edward M. Chen re 34 Plaintifff's Motion to Dismiss (emclc1, COURT STAFF) (Filed on 1/22/2010)

1 2 3 4 5 6 7 8 9 10 HARWOOD INVESTMENT COMPANY, et al., Plaintiffs, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, et al., Defendants. ___________________________________/ No. C-09-3410 EMC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

ORDER RE PLAINTIFF'S MOTION FOR DISMISSAL (Docket No. 34)

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Plaintiffs Harwood Investment Company and Willits Financial, Inc. have moved for dismissal of this action against Defendants Wells Fargo Bank, NA, and Rabin Worldwide, Inc. No opposition to the motion has been filed.1 Under Federal Rule of Civil Procedure 41(a), a "plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A)(I). In the instant case, neither Defendant answered Plaintiffs' complaint, nor did either Defendant file a motion for summary judgment. While both Defendants did file motions to dismiss, Plaintiffs' "right to a voluntary dismissal is not extinguished by the filing of a motion to dismiss under [Rule]12(b)." 8-41 Moore's Fed. Prac. -- Civ. § 41.33[5][c][viii][A]; see also Concha v. London, 62 F.3d 1493, 1506 (9th Cir.

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Rabin orally informed the Court that it did not intend to oppose the motion.

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1995) (stating that, "[e]ven if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1)"). Accordingly, the Court hereby construes Plaintiffs' motion for dismissal as a notice of dismissal under Rule 41(a)(1) and this action is deemed dismissed without prejudice. See Randle v. Sarfan, Nos. C 93-1927 VRW, C 93-1928 VRW, 1994 U.S. Dist. LEXIS 803, at *1 (N.D. Cal. Jan. 31, 1994) (construing plaintiff's motion to dismiss as a notice of dismissal). The hearing on Plaintiffs' motion is VACATED, and the Clerk of the Court is instructed to close the file in this case. This order disposes of Docket No. 34.

United States District Court

11
For the Northern District of California

IT IS SO ORDERED.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 22, 2010 _________________________ EDWARD M. CHEN United States Magistrate Judge

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