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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 JOHN SHEK, Plaintiff(s), 8 9 ORDER OF DISMISSAL CHILDREN’S HOSPITAL & RESEARCH CENTER AT OAKLAND, 11 For the Northern District of California United States District Court 10 v. No. C 11-1968 PJH 12 Defendant(s). _______________________________/ 13 Before the court is defendant’s motion to dismiss plaintiff’s complaint, noticed for 14 hearing on September 21, 2011. Plaintiff’s responsive brief, to the extent it is 15 comprehensible, reads like an opposition to the motion to dismiss, but is entitled “Plaintiff’s 16 motion to dismiss without prejudice, change of venue after failed attempt for requesting 17 recusal of Judge Phyllis J. Hamilton for bias.” In the body of the brief, plaintiff requests the 18 court to dismiss the case without prejudice for change of venue. While it is not clear what 19 plaintiff intends by the use of the words “for change of venue,” the law is clear that plaintiff 20 has a right to dismiss his own case without a court order before an answer or motion for 21 summary judgment is filed pursuant to Fed. R. Civ. P. 41(a)(1). Accordingly, as neither an 22 answer nor motion for summary judgment has been filed, and given that plaintiff could have 23 simply filed a notice of voluntary dismissal, the court GRANTS plaintiff’s request and 24 DISMISSES this case without prejudice. The clerk shall close the file. 25 IT IS SO ORDERED. 26 Dated: September 9, 2011 27 28 ______________________________ PHYLLIS J. HAMILTON United States District Judge

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