Duarte et al v. Mayorkas et al

Filing 95

ORDER by Judge Saundra Brown Armstrong ( 85 Motion to Dismiss; and 86 Ex Parte Application are terminated). (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 10/28/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JOSE DUARTE, et al.,

Case No: C 12-03647 SBA

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Plaintiffs,

ORDER

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vs.

Docket 85, 86

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ALEJANDRO MAYORKAS, et al.,
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Defendants.
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On September 6, 2013, pro se Plaintiff Jose Duarte filed a motion to dismiss "his

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cause of action" under Rule 41(a) of the Federal Rules of Civil Procedure. Dkt. 85. Under

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Rule 41(a), a plaintiff may dismiss an action without a court order by filing "a notice of

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dismissal before the opposing party serves either an answer or a motion for summary

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judgment." Fed.R.Civ.P. 41(a)(1)(A)(i); see Wilson v. City of San Jose, 111 F.3d 688, 692

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(9th Cir. 1997) ("Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily

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dismiss his action prior to service by the defendant of an answer or a motion for summary

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judgment.").

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Here, because no Defendant has filed an answer or motion for summary judgment,

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the Court construes Jose Duarte's motion as a notice of voluntary dismissal under Rule

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41(a)(1)(A)(i). Accordingly, Jose Duarte's claims against Defendants are DISMISSED

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without prejudice. This Order terminates Docket 85 and Docket 86.

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IT IS SO ORDERED.
Dated: 10/28/2013
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SAUNDRA BROWN ARMSTRONG
United States District Judge