Schnarrs et al v. Rushmore Loan Management et al

Filing 36

ORDER granting in part and denying in part 31 Plaintiff's Motion for Extension of Time, denying extension, granting Plaintiff's VOLUNTARY DISMISSAL without prejudice; finding as moot 15 Defendants' Motion to Dismiss for Failure to State a Claim; finding as moot 23 Defendants' Motion to Dismiss; this matter is VOLUNTARILY DISMISSED without prejudice; signed by Judge Ronald B. Leighton.(DN) Modified on 2/16/2017 (DN). (cc to pltf)

1

HONORABLE RONALD B. LEIGHTON

2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

7
8

FRANK W. SCHNARRS,

CASE NO. C16-5926RBL

9
Plaintiff,
10

ORDER OF DISMISSAL
WITHOUT PREJUDICE

v.
11
12

RUSHMORE LOAN MANAGEMENT,
et al.,

13

Defendants.

14
THIS MATTER is before the Court on Defendants’ Motions to Dismiss [Dkt. #s 15 &
15
23]. The Motions were re-noted to allow Plaintiff Schnarrs to obtain counsel [Dkt. #29].
16
Schnarrs has since re-filed what appears to be the same request for a continuance, to a date
17
(February 1) which has already passed [Dkt. #31]. In the alternative, he seeks again dismissal
18
without prejudice.
19
The Court will not continue the pending motions again, and that request is DENIED.
20
Defendants ask the Court to treat Schnarrs’ filings as a failure to respond to their motions and to
21
dismiss his claims with prejudice under Local Rule 7.
22
However, a plaintiff has the unilateral right to voluntarily dismiss his claims without
23
prejudice when the defendant has not answered or filed a motion for summary judgment. Fed. R.
24
ORDER OF DISMISSAL WITHOUT PREJUDICE 1

1 Civ. P. 41(a)(1)(A)(i). Where there is instead a pending motion to dismiss for failure to state a
2 claim, the plaintiff’s voluntary dismissal effectively moots that motion, and the dismissal is
3 without prejudice. See American Soccer Co., Inc. v. First Score Enterprises, 187 F.3d 1108 (9th
4 Cir. 1999). The apparent prejudice to the defendants can be remedied by an award of costs when
5 and if the plaintiff re-files his claims. Fed. R. Civ. P. 41(d)(1).
6

The Court will treat Schnarrs’ filing [Dkt. #31] as a notice of voluntary dismissal, and

7 this matter is DISMISSED WITHOUT PREJUDICE. The defendants’ pending motions to
8 dismiss [Dkt. #s 15 & 23] are DENIED as moot.
9
10

IT IS SO ORDERED.
Dated this 16th day of February, 2017.

12

A

13

Ronald B. Leighton
United States District Judge

11

14
15
16
17
18
19
20
21
22
23
24
ORDER OF DISMISSAL WITHOUT PREJUDICE 2