(PS)Razavi v. Dept. of Veterans Affairs

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL RAZAVI, No. 2:20–cv–1825–KJM–KJN PS

Plaintiff, ORDER v. (ECF No. 11, 12)

DEPARTMENT OF VETERANS

AFFAIRS, et al.,

Defendants.

On January 21, 2021, the court received plaintiff’s self-titled “Motion to Dismiss Complaint Without Prejudice.” (ECF No. 11.) Defendants responded, arguing that plaintiff’s filing should be construed as a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 12.) The court concurs.

Rule 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 . . . .” See Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (“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.”); 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).

Here, defendants have not yet served an answer or motion for summary judgment in this case. Therefore, plaintiff's request for dismissal is effective without a court order. However, for purposes of clarity, the undersigned now ORDERS that:

1. Plaintiff's notice of voluntary dismissal under Rule 41(a)(1)(A)(i) is found to be effective; 2. The findings and recommendations on defendants’ motion to dismiss (ECF No. 10) are WITHDRAWN as moot; and

3. The Clerk of Court is directed to CLOSE this case and vacate all dates.

Dated: January 26, 2021 i Aectl Aharon

KENDALL J. NE raza.1825 UNITED STATES MAGISTRATE JUDGE