Burgess v. Ruttenburg

61 F. App'x 460

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2003
• Docket: No. 02-55892; D.C. No. CV-02-01043-DDP
• Status: Published

Opinion

MEMORANDUM

**

Reginald P. Burgess appeals pro se the district court’s judgment dismissing with prejudice his action challenging a state court order appointing a probate conservator. Burgess contends the district court erred by vacating his notice of voluntary dismissal under Fed.R.Civ.P. 41(a)(l)(i). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether the district court may vacate a voluntary dismissal. Amer. Soccer Co. v. Score First Enters., 187 F.3d 1108, 1109-10 (9th Cir.1999). We reverse and remand.

Because Burgess filed a notice of voluntary dismissal before defendants filed an answer or moved for summary judgment, he had an “absolute right” to a dismissal without prejudice and without judicial involvement. See id. at 1110. Therefore, we reverse the judgment dismissing with prejudice and order the case dismissed without prejudice. See id. at 1112.

Burgess’s request for judicial notice is denied.

Each party shall bear its own costs on appeal.

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.