Fritz v. Smith et al

Northern District of California, cand-4:2015-cv-01534


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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 THOMAS FRITZ, 4 Case No. 15-cv-01534-DMR (PR) Petitioner, 5 ORDER ACKNOWLEDGING v. PETITIONER'S VOLUNTARY 6 DISMISSAL OF THIS ACTION LAURIEN SMITH, et al., 7 Respondents. 8 9 On April 3, 2015, Petitioner filed a document with the court in the instant case, which was 10 opened as a habeas corpus action. Petitioner has consented to magistrate judge jurisdiction in this 11 matter. Dkt. 4 at 1. 12 On the same day the action was filed the Clerk of the Court sent a notice to Petitioner Northern District of California United States District Court 13 informing him that his action could not go forward until he filed with the court a habeas corpus 14 petition form, completed in full, within twenty-eight days or his action would be dismissed. He 15 was also sent another notice directing him to either pay the filing fee or file a completed prisoner's 16 in forma pauperis ("IFP") application. The Clerk sent Petitioner a blank IFP application and told 17 him that he must pay the fee or return the completed application within twenty-eight days or his 18 action would be dismissed. 19 Before the court is Petitioner's "Motion to Dismiss," in which he moves for the court to 20 dismiss the above-referenced action because he has "found an 'out of court settlement.'" Dkt. 5 at 21 1. 22 Rule 41 of the Federal Rules of Civil Procedure grants a party bringing an action the 23 absolute right to dismiss such action by filing a notice of dismissal "at any time before service by 24 the adverse party of an answer or of a motion for summary judgment." See Fed. R. Civ. P. 25 41(a)(1)(i). Said dismissal may be with or without prejudice, but unless the notice of dismissal 26 states otherwise, it is deemed to be "without prejudice." See Fed. R. Civ. P. 41(a)(1); Humphreys 27 v. United States, 272 F.2d 411, 412 (9th Cir. 1959). No court order is required. The notice of 28 dismissal is effective by itself to terminate the action: "[A]n action may be dismissed by [a party] 1 without order of the court. . . by filing a notice of dismissal." Fed. R. Civ. P. 41(a)(1); see also 2 Hamilton v. Shearson-Lehman Am. Exp. Inc., 813 F.2d 1532, 1534-36 (9th Cir. 1987) (Rule 3 41(a)(1)(i) does not require leave of court to dismiss the action). 4 The court will construe Petitioner's "Motion to Dismiss" as a notice of dismissal. 5 Petitioner's notice of dismissal was filed before service by the adverse party of an answer; 6 therefore, the court finds that Petitioner has the absolute right to dismiss his action voluntarily. 7 See Fed. R. Civ. P. 41(a)(1)(i). Based on Petitioner's request for voluntary dismissal, the court 8 acknowledges that this action is DISMISSED without prejudice. See id. 9 The Clerk shall enter judgment, terminate all pending motions, and close the file. 10 This Order terminates Docket No. 5. 11 IT IS SO ORDERED. 12 Dated: May 1, 2015 Northern District of California United States District Court 13 ______________________________________ DONNA M. RYU 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2