Jorge Gutierrez v. HSBC Bank USA National Association

Opinion

Case 5:22-cv-01781-DOC-SP Document 16 Filed 02/27/23 Page 1 of 2 Page ID #:235

JORGE GUTIERREZ, ) Case No. 5:22-cv-01781-DOC (SP) ) Plaintiff, ) ) v. ) ORDER GRANTING ) VOLUNTARY DISMISSAL ASSOCIATION, et al., ) ) Defendants. ) On October 11, 2022, pro se plaintiff Jorge Gutierrez initiated this action by filing a civil rights Complaint under 42 U.S.C. § 1983. Defendants filed an Answer to the Complaint on November 14, 2022, and then filed a motion for judgment on the pleadings on January 18, 2023, which is pending. Plaintiff did not file a response to the motion for judgment on the pleadings by the February 17, 2023 deadline to do so. Instead, on February 22, 2023, plaintiff filed a Notice of Dismissal, in which he states he is dismissing this action in its entirety. The Court construes this as a request for voluntary dismissal of this action. Under Rule 41(a) of the Federal Rules of Civil Procedure, a plaintiff may voluntarily dismiss an action, without a court order, by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary ase 5:22-cv-01781-DOC-SP Document16 Filed 02/27/23 Page 2of2 Page ID #:23

judgment.” Fed. R. Civ. P. 41(a)(1)(A)(G). Such dismissal is without prejudice. Fed. R. Civ. P. 41(a)(1)(B). If the opposing party has answered or moved for summary judgment and there is no stipulation of dismissal, a plaintiff requires a court order to voluntarily dismiss an action. Fed. R. Civ. P. 41(a)(2). “In ruling on a motion for voluntary dismissal, the District Court must consider whether the defendant will suffer some plain legal prejudice as a result of the dismissal.” Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982). Although defendants here have answered, they have not yet moved for summary judgment, and this case 1s still in its early stages. Consequently, it does not appear that defendants will suffer any prejudice by plaintiff's voluntary dismissal of this action. The Court will therefore allow plaintiff to voluntarily dismiss this action, without prejudice. See Westlands Water Dist. v. U.S., 100 F.3d 94, 96 (9th Cir. 1996) (“the threat of future litigation which causes uncertainty is insufficient to establish plain legal prejudice” so as to warrant denial of voluntary dismissal without prejudice). IT IS THEREFORE ORDERED that plaintiff's voluntary dismissal of this action is GRANTED, and that Judgment be entered dismissing the Complaint and this action without prejudice. DATED: February 27, 2023 Alon . 51 AO Cnritw HONORABLE DAVID O. CARTER UNITED STATES DISTRICT JUDGE