(PC) Spencer v. Edwards

Opinion

EDWARD B. SPENCER, Case No. 1:21-cv-01410-BAM (PC) Plaintiff, NOTICE OF ERRATA v. AMENDED ORDER REGARDING PLAINTIFF’S NOTICE OF VOLUNTARY

Defendant. (ECF No. 12) Plaintiff Edward B. Spencer (“Plaintiff”) is a state prisoner who proceeded pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 28, 2021, the Court screened Plaintiff’s complaint and issued an order granting Plaintiff leave to file a first amended complaint or a notice of voluntary dismissal. (ECF No. 9.) Plaintiff filed a motion for an extension of time to file an amended complaint, which the Court granted on January 19, 2022. (ECF Nos. 10, 11.) On February 2, 2022, Plaintiff filed a notice of voluntary dismissal without prejudice. (ECF No. 12.) Plaintiff requests that this entire action be dismissed without prejudice, including all causes of action, pursuant to Federal Rule of Civil Procedure 41(a)(1). (Id.) “[U]nder Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction to do anything about it.” Id. at 1078. No defendant has been served in this action and no defendant has filed an answer or motion for summary judgment. Pursuant to Rule 41(a)(1), on February 3, 2022, the Court issued an order terminating this action, with prejudice, by operation of law without further order from the Court, and the case was closed. (ECF No. 13 (emphasis added).) On February 14, 2022, Plaintiff filed an objection to the Court’s February 3, 2022, order, arguing that he stipulated to dismissal without prejudice, while the Court’s order terminated the case with prejudice. (ECF No. 14.) Upon review of the case, the Court finds that Plaintiff’s objection is meritorious, and issues the instant Notice of Errata to correct the clerical error in the February 3, 2022 order. Accordingly, IT IS HEREBY ORDERED as follows: 1. By the instant amended order, this action is terminated, without prejudice, by operation of law without further order from the Court. Fed. R. Civ. P. 41(a)(1)(A)(i); and 2. This case remains closed. IT IS SO ORDERED.

Dated: February 16, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE