Rusk v. McGraph et al

Filing 40

ORDER DISMISSING CASE. Signed by Judge Dana L. Christensen on 5/10/2022. (ASG)

Case 2:22-cv-00024-DLC Document 40 Filed 05/10/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ZACHARY RUSK,

CV 22–24–BU–DLC
Plaintiff,

vs.

ORDER

MONTANA SUPREME COURT
JUSTICES MIKE MCGRATH, et al.,
Defendants.

On May 7, 2022, Plaintiff Zachary Rusk filed document entitled Ex-Parte
Plaintiff’s Motion to Dismiss. (Doc. 39.) This document states that “Zachary
Rusk, Plaintiff, hereby moves to dismiss this case.” (Id.) For the reasons stated
below, the Court will construe this filing as a notice of dismissal under Rule
41(a)(1)(A)(i) of the Federal Rules of Civil Procedure and order this case closed.
Because Rusk is proceeding pro se, the Court finds it necessary to provide
some thoughts on the effect of his recent filing. (Doc. 39.) Rule 41(a)(1)(A)(i)
affords Mr. Rusk the “absolute right to voluntarily dismiss his action prior to
service by the defendant[s] of an answer or motion for summary judgment.”
Commercial Space Mgmt. Co. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir.
1999). In the Ninth Circuit the effect of such a notice is clear, “no court order is
required, the parties are left as though no action had been brought, the defendant[s]
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Case 2:22-cv-00024-DLC Document 40 Filed 05/10/22 Page 2 of 3

can’t complain, and the district court lacks jurisdiction to do anything about it.” Id.
at 1077–78 (adding the “filing of a notice of voluntary dismissal with the court
automatically terminates the action as to the defendants who are the subjects of the
notice.”).
Rusk brings this action against numerous defendants. All but one of them
has filed or joined a motion to dismiss this action. (See generally Docs. 26; 28; 31;
33; 35; 38.) These motions seek dismissal for failure to state a claim and/or lack of
subject matter jurisdiction. (Id.) Defendant Quinn Ellingson has not yet been
served or otherwise appeared. In other words, no defendant to this action has yet
filed an answer, see Federal Rules of Civil Procedure 7(a)(2), 8(b), 12(a)(1), or a
summary judgment motion, see Federal Rule of Civil Procedure 56(a). As such,
Rusk’s absolute right to dismiss this action remains live. Boeing, 193 F.3d at
1077.
Although Rusk’s filing is styled as a motion for an order from this Court
dismissing the action, it unequivocally expresses his desire to dismiss the action as
to all defendants. Construing this filing liberally, Erickson v. Pardus, 551 U.S. 89,
94 (2007), the Court interprets it to constitute a notice of voluntary dismissal under
Rule 41(a)(1)(A)(i). Because of this construction, the Court no longer has
jurisdiction over the action, Boeing, 193 F.3d at 1076, and the case shall be closed.

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Case 2:22-cv-00024-DLC Document 40 Filed 05/10/22 Page 3 of 3

Accordingly, IT IS ORDERED that because Rusk has dismissed this action,
the Clerk of Court shall close the case file.
DATED this 10th day of May, 2022.

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