Stephen Aguiar v. Facebook Inc.

Filing 12

ORDER GRANTING PLAINTIFF'S MOTION FOR VOLUNTARILY DISMISSAL AND DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS by Judge Paul S. Grewal denying as moot 5 Motion to Dismiss; granting 9 Motion to Dismiss (psglc3S, COURT STAFF) (Filed on 7/22/2014) (Additional attachment(s) added on 7/22/2014: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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STEPHEN AGUIAR,
Plaintiff,

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v.

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FACEBOOK INC.,
Defendant.

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Case No. 5:14-cv-02612-PSG
ORDER GRANTING PLAINTIFF’S
MOTION FOR VOLUNTARILY
DISMISSAL AND DENYING AS
MOOT DEFENDANT’S MOTION TO
DISMISS
(Re: Docket Nos. 5, 9)

The court has two motions before it, both seeking to dismiss this action. On June 13, 2014
Defendant Facebook Inc. filed a motion under Fed. R. Civ. P 12(b)(6) to dismiss the action with
prejudice for failure to state a claim. 1 In response, Plaintiff Stephen Aguiar filed his own motion

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seeking to voluntarily withdraw the action without prejudice to refiling. 2
Because neither an answer nor a summary judgment motion has been filed, Aguiar may, at

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any time, file a notice of voluntary dismissal to “automatically terminate[] the action” without

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prejudice. 3 A motion to dismiss under Rule 12(b)(6) is insufficient to divest Aguiar of this right. 4

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See Docket No. 5.

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2

See Docket No. 9.

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See Fed. R. Civ. P. 41(a)(1)(A-B) (“[T]he plaintiff may dismiss an action without a court order by
filing a notice of dismissal before the opposing party serves either an answer or a motion for
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Case No. 5:14-cv-02612-PSG
ORDER GRANTING PLAINTIFF’S MOTION FOR VOLUNTARILY DISMISSAL AND
DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS

No additional order from the court is required to dismiss the action. 5 With the case

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dismissed, the court DENIES AS MOOT Facebook’s motion to dismiss with prejudice.

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IT IS SO ORDERED

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Dated: July 22, 2014

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
For the Northern District of California

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summary judgment . . . Unless the notice or stipulation states otherwise, the dismissal is without
prejudice.”); see also Swedberg v. Marotzke, 339 F.3d 1139, 1142 (9th Cir. 2003) (quoting
Hamilton v. Shearson-Lehman Am. Exp., Inc., 813 F.2d 1532, 1534 (9th Cir. 1987)).
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See id. at 1146 (holding that a plaintiff retains the right to voluntarily dismiss his case without
prejudice after a defendant files a motion to dismiss under Rule 12(b)(6) so long as the court has
not taken any action to convert that motion into a motion for summary judgment).
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See id.

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Case No. 5:14-cv-02612-PSG
ORDER GRANTING PLAINTIFF’S MOTION FOR VOLUNTARILY DISMISSAL AND
DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS