Opinion
No. C12-05521 HRL
11-27-2013
RICK FUTIA, Plaintiff, v. ANTHONY CIRONE, ET AL., Defendants.
NOT FOR CITATION
ORDER TERMINATING
DEFENDANT'S MOTION FOR
INVOLUNTARY DISMISSAL
[Re: Docket No. 6]
Plaintiff Rick Futia sues Richard Cirone and six other defendants for alleged violations of the Americans with Disabilities Act and related California law. Futia filed the complaint in October 2012 and a summons for all defendants was issued the same day. However, Futia purportedly did not serve Cirone until September 2013, nearly one year later, and he has not served any of the remaining six named defendants. On October 21, 2013, Futia filed a Notice of Voluntary Dismissal. Approximately 30 minutes later, Cirone filed the instant motion to dismiss with prejudice for failure to prosecute.
"[T]he plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A). "Unless the notice . . . states otherwise, the dismissal is without prejudice." Fed. R. Civ. P. 41(a)(1)(B). "This '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." Am. Soccer Co. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999). "The filing of a notice of voluntarily dismissal with the court automatically terminates the action as to defendants who are the subjects of the notice. . . . Such a dismissal leaves the parties as though no action had been brought." Id. (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)).
Here, Futia filed a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A) before Cirone served either an answer or motion for summary judgment. Futia's notice operates automatically to dismiss the action without prejudice upon filing. The Court does not have jurisdiction to vacate or deny such a voluntary dismissal in order to decide Cirone's motion to dismiss with prejudice for failure to prosecute. See Am. Soccer Co., 187 F.3d at 1112 (concluding that the district court was without jurisdiction to vacate the voluntary dismissal and rule on the merits of the case). Accordingly, defendant's motion is terminated.
IT IS SO ORDERED.
______________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
C12-05521 HRL Notice will be electronically mailed to: Justine Rose Lescroart jxl@millermorton.com Thomas Nelson Stewart , III t_stew_3@yahoo.com