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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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 JOSE DUARTE, et al., Case No: C 12-03647 SBA 6 Plaintiffs, ORDER 7 vs. Docket 85, 86 8 ALEJANDRO MAYORKAS, et al., 9 Defendants. 10 11 On September 6, 2013, pro se Plaintiff Jose Duarte filed a motion to dismiss "his 12 cause of action" under Rule 41(a) of the Federal Rules of Civil Procedure. Dkt. 85. Under 13 Rule 41(a), a plaintiff may dismiss an action without a court order by filing "a notice of 14 dismissal before the opposing party serves either an answer or a motion for summary 15 judgment." Fed.R.Civ.P. 41(a)(1)(A)(i); see Wilson v. City of San Jose, 111 F.3d 688, 692 16 (9th Cir. 1997) ("Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily 17 dismiss his action prior to service by the defendant of an answer or a motion for summary 18 judgment."). 19 Here, because no Defendant has filed an answer or motion for summary judgment, 20 the Court construes Jose Duarte's motion as a notice of voluntary dismissal under Rule 21 41(a)(1)(A)(i). Accordingly, Jose Duarte's claims against Defendants are DISMISSED 22 without prejudice. This Order terminates Docket 85 and Docket 86. 23 24 25 26 27 28 IT IS SO ORDERED. Dated: 10/28/2013 ________________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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