Brambila et al v. Deutsche Bank National Trust Company as Trustee of Indymac Indx Mortgage Trust 2007-AR11 et al

Filing 20

ORDER DISMISSING CASE. Signed by Judge Edward M. Chen on 12/1/11. (bpf, COURT STAFF) (Filed on 12/1/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PEDRO BRAMBILA, et al.,

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No. C11-4485 EMC

Plaintiffs,
ORDER DISMISSING ACTION
v.

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For the Northern District of California

United States District Court

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DEUTSCHE BANK, et al.,

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Defendants.
___________________________________/

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Plaintiffs Pedro and Ricardo Brambila filed suit against Deutsche Bank and Stephanie

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Fordham following the foreclosure of their home. They allege causes of action for violations of the

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FDCPA and § 1983, Compl. ¶¶ 70-128, wrongful foreclosure and quiet title, Compl. ¶¶ 129-36, and

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slander of title and fraudulent inducement, Compl. ¶¶ 137-41. Both Defendants filed motions to

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dismiss. Docket Nos. 3, 10. Plaintiffs filed no opposition, but instead filed a motion for voluntary

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dismissal without prejudice. Docket No. 19. Plaintiffs request a voluntary dismissal by Court order

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under Rule 41(a)(2), which provides that a Court may order voluntary dismissal “on terms that the

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court considers proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2) is

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without prejudice.”

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However, while pro se Plaintiffs filed their motion under 41(a)(2), they actually have a right

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under 41(a)(1) to dismiss the action voluntarily without prejudice. “It is well settled that under Rule

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41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the

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defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co. v.

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Boeing Co., 193 F.3d 1074, 1077 (9th Cir.1999) (internal citations and quotation marks omitted).

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Under 41(a)(1), a plaintiff may voluntarily dismiss an action and “automatically terminate[] the

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action as to the defendants who are the subjects of the notice.” Accordingly, the Court construes

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Plaintiffs’ filing as a notice of voluntary dismissal pursuant to Rule 41(a)(1) and instructs the Clerk

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to close the file.1

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This Order disposes of Docket Nos. 3, 10, and 19. The hearing set for December 2, 2011, is
hereby VACATED.

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IT IS SO ORDERED.

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Dated: December 1, 2011

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For the Northern District of California

United States District Court

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_________________________
EDWARD M. CHEN
United States District Judge

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The Ninth Circuit in Commercial Space made clear that ordinarily, the Court is divested of

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jurisdiction to enter further orders confirming a notice of voluntary dismissal under Rule

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41(a)(1). 193 F.3d at 1077 & n.4. However, in this case, due to pro se Plaintiffs’ error, the

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Court determines that a clarifying order was necessary before terminating the action.

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