Hill v. Twin Star Credit Union et al

Filing 77

OPINION AND ORDER: Plaintiffs Motion for Voluntary Dismissal (part of docket # 70 ) is deemed a Notice of Voluntary Dismissal pursuant to Rule 41(a)(1) (A)(i). Accordingly, the Clerk is instructed to terminate this action without prejudice, and all pending motions (dockets # 18 , # 19 , # 61 , # 68 , & part of # 70 seeking withdrawal of plaintiffs attorney) are denied as moot. Signed on 3/17/15 by Magistrate Judge Janice M. Stewart. (jlr)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

KAREN M. HILL,
Plaintiff,
Case No. 3:14-cv-01585-ST
v.
OPINION AND ORDER
TWIN STAR CREDIT UNION; MIDWEST
LOAN SERVICES, INC.; NW TRUSTEE
SERVICES, INC.; RCO LEGAL PC; et al,
Defendant(s).

STEWART, Magistrate Judge:
Plaintiff, Karen M. Hill, appearing pro se, filed this action on October 8, 2014, against
defendants alleging a number of claims arising from a completed foreclosure sale of her property
on October 5, 2012, conducted by defendant, NW Trustee Services, Inc. (“NWTS”), as successor
trustee under a Deed of Trust granted to plaintiff by defendant, Twin Star Credit Union. Plaintiff
then filed an Amended Complaint on October 17 (docket #8), Second Amended Complaint on
November 10 (docket #10), and Third Amended Complaint on November 21, 2014 (docket #16).
Instead of filing Answers to the Third Amended Complaint, defendants NWTS and RCO
Legal PC (NWTS’s lawyer) filed a Motion to Dismiss (docket #18) for failure to state a claim
and a Request for Judicial Notice (docket #19). Defendants Midwest Loan Services and Twin
1 – OPINION AND ORDER

Star Credit Union subsequently filed Notices of Joinder in NWTS’s motion (dockets #36 & #59),
along with another Request for Judicial Notice (docket #61) by Twin Star Credit Union which
NWTS later joined (docket #67).
In order to respond to NWTS’s motion, this court appointed pro bono counsel for
plaintiff which was accepted (dockets #39 & #44). After pro bono counsel filed a response to
NWTS’s motion (docket #49), NWTS filed a Reply in support of its motion (docket #57). The
Court then set a hearing date on that motion for March 10, 2015 (docket #58).
On February 27, 2015, plaintiff filed a Motion to Withdraw an Attorney and Proceed Pro
se and Motion for Voluntary Dismissal (docket #70), and a few days later pro bono counsel filed
a Motion to Withdraw as Counsel (docket #68). Plaintiff seeks removal of her pro bono counsel
based on a disagreement about whether to dismiss some of her claims which she believes have
merit. She also seeks dismissal of this case without prejudice based on her illness (supported by
a letter from her physician (docket #56)). In their responses, defendants state no objection to
withdrawal of plaintiff’s pro bono counsel, but oppose dismissal unless with prejudice and
without leave to amend on the basis that plaintiff cannot state a claim for relief and that they
should not have to incur future costs of defense if she refiles her case (dockets #74, #75, & #76).
Although plaintiff did not cite any authority for her Motion for Voluntary Dismissal,
Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure provides that “the 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 summary judgment.” The Ninth Circuit has been
clear that Rule 41 confers on the plaintiff:
an absolute right to voluntarily dismiss his [or her] action prior to
service by the defendant of an answer or a motion for summary
judgment. A plaintiff may dismiss his [or her] action so long as
the plaintiff files a notice of dismissal prior to the defendant’s

2 – OPINION AND ORDER

service of an answer or motion for summary judgment. The
dismissal is effective on filing and no court order is required . . .
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 . . . . Such a dismissal leaves the parties
as though no action had been brought.
American Soccer Co., Inc. v. Score First Enters., 187 F3d 1108, 1110 (9th Cir 1999), quoting
Wilson v. City of San Jose, 111 F3d 688, 692 (9th Cir 1997) (reversing district court’s order
vacating voluntary dismissal)
Furthermore, because the language of Rule 41(a)(1)(A)(i) is unequivocal, the “‘absolute
right’ for a plaintiff voluntarily to dismiss an action when the defendant has not yet served an
answer or a summary judgment motion leaves no role for the court to play.” Id.
The language of rule 41(a)(1) is unequivocal. It permits a plaintiff
to dismiss an action “without order of court.” . . . “Th[e] [filing of
notice] itself closes the file. There is nothing the defendant can do
to fan the ashes of that action into life and the court has no role to
play. This is a matter of right running to the plaintiff and may not
be extinguished or circumscribed by adversary or court. There is
not even a perfunctory order of court closing the file. Its alpha and
omega was the doing of the plaintiff alone. He suffers no
impairment beyond his fee for filing.
Pedrina v. Chun, 987 F2d 608, 610 (9th Cir 1993), quoting American Cyanamid Co. v. McGhee,
317 F2d 295, 297 (5th Cir 1963).
No defendants has filed an answer or summary judgment motion. Therefore, in light of
plaintiff’s Motion for Voluntary Dismissal, there is no role for this court to play other than to
ensure that the Clerk of Court terminates this action. The Ninth Circuit has observed that such
practice “does not prejudice defendants. If defendants ‘desire to prevent plaintiffs from invoking
their unfettered right to dismiss actions under rule 41(1)(a) [they] may do so by taking the simple
step of filing an answer.’” American Soccer Co., Inc., 187 F3d at 1112, quoting Carter v. United
States, 547 F2d 258, 259 (5th Cir1977).

3 – OPINION AND ORDER

Additionally, Rule 41(a)(1)(B) provides that:
Unless the notice [of voluntary dismissal] . . . states otherwise, the
dismissal is without prejudice. But if the plaintiff previously
dismissed any federal- or state-court action based on or including
the same claim, a notice of dismissal operates as an adjudication on
the merits.
Since nothing in the record reveals that plaintiff previously filed and dismissed any other
action based on or including the same claims, the dismissal must be without prejudice as plaintiff
requests.
ORDER
Plaintiff’s Motion for Voluntary Dismissal (part of docket #70) is deemed a Notice of
Voluntary Dismissal pursuant to Rule 41(a)(1)(A)(i). Accordingly, the Clerk is instructed to
terminate this action without prejudice, and all pending motions (dockets #18, #19, #61, #68, &
part of #70 seeking withdrawal of plaintiff’s attorney) are denied as moot.
DATED March 17, 2015.

s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

4 – OPINION AND ORDER