Opinion
No. 2:19-cv-525-KJM-KJN PS
08-01-2019
SABRINA LEWIS, Plaintiff, v. PARAMOUNT EQUITY MORTGAGE LLC, Defendant.
ORDER VACATING F&Rs AND ORDERING CASE CLOSED
On July 3, 2019, the undersigned entered filings and recommendations to dismiss Plaintiff's complaint without prejudice for failure to pay the filing fee. (ECF No. 4.) On July 26, Plaintiff filed a "request for dismissal and notice of settlement," requesting dismissal with prejudice. (ECF No. 5.)
Federal Rule of Civil Procedure 41(a)(1)(A) provides that "the 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 . . . ." The Ninth Circuit has stated:
Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1). The dismissal is effective on filing and no court order is required. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants.Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995); see also United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008) (noting that dismissal under Rule 41(a)(1)(A)(i) requires no action on the part of the court and divests the court of jurisdiction once the notice of voluntary dismissal is filed).
Because Defendants have not yet served an answer or motion for summary judgment in this case, Plaintiff's request for dismissal is effective without a court order.
Accordingly, for purposes of clarity, IT IS HEREBY ORDERED that:
1. The findings and recommendations entered on July 3, 2019 (ECF No. 4) are VACATED;
2. The action is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i);
3. The Clerk of Court is directed to close this case and vacate all dates.
IT IS SO ORDERED. Dated: August 1, 2019
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE lewi.525