Shek v. Children Hospital & Research Center at Oakland

Filing 28

ORDER OF DISMISSAL. Signed by Judge Phyllis J. Hamilton on 9/9/2011. (hlk, COURT STAFF) (Filed on 9/9/2011) (Additional attachment(s) added on 9/9/2011: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN SHEK,
Plaintiff(s),

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ORDER OF DISMISSAL

CHILDREN’S HOSPITAL & RESEARCH
CENTER AT OAKLAND,

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For the Northern District of California

United States District Court

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v.

No. C 11-1968 PJH

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Defendant(s).
_______________________________/

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Before the court is defendant’s motion to dismiss plaintiff’s complaint, noticed for
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hearing on September 21, 2011. Plaintiff’s responsive brief, to the extent it is
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comprehensible, reads like an opposition to the motion to dismiss, but is entitled “Plaintiff’s
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motion to dismiss without prejudice, change of venue after failed attempt for requesting
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recusal of Judge Phyllis J. Hamilton for bias.” In the body of the brief, plaintiff requests the
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court to dismiss the case without prejudice for change of venue. While it is not clear what
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plaintiff intends by the use of the words “for change of venue,” the law is clear that plaintiff
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has a right to dismiss his own case without a court order before an answer or motion for
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summary judgment is filed pursuant to Fed. R. Civ. P. 41(a)(1). Accordingly, as neither an
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answer nor motion for summary judgment has been filed, and given that plaintiff could have
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simply filed a notice of voluntary dismissal, the court GRANTS plaintiff’s request and
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DISMISSES this case without prejudice. The clerk shall close the file.
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IT IS SO ORDERED.
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Dated: September 9, 2011
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______________________________
PHYLLIS J. HAMILTON
United States District Judge