Opinion
Case No.: 2:13-cv-00900-JAD-VCF
11-06-2013
Steven J. Bank, Plaintiff v. Las Vegas Justice Court et al., Defendants
Order Accepting Report and
Recommendation in Part [Doc. 3] and
Granting Motion to Dismiss
without Prejudice [Doc. 4]
This case arises out of Plaintiff Steven Bank's conspiracy-related claims against state and private defendants. Doc. 1-1. Bank filed a Motion/Application for Leave to Proceed in Forma Pauperis, Doc. 1, on May 22, 2013. Magistrate Judge Cam Ferenbach entered an Order and Report and Recommendation on September 6, 2013, granting Bank's request for in forma pauperis status and recommending that Bank's claims be dismissed with prejudice. Doc. 3. On September 25, 2013, Bank filed a Motion to Withdraw Complaint without Prejudice, Doc. 4, which the Court treats as a Motion to Dismiss without Prejudice, bearing in mind that federal courts "liberally construe the 'inartful pleading' of pro se litigants" like Bank. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
Federal Rule of Civil Procedure Rule 41 allows a plaintiff to "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 judgment." If this is the plaintiff's first dismissal "based on or including the same claim," then dismissal does not operate as an adjudication on the merits. See FED. R. CIV. P. 41(1)(B). Voluntary dismissal "means that the party is filing the dismissal without being compelled by another party or the court." Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 727 (9th Cir. 1991) (quoting Randall v. Merrill Lynch, 820 F.2d 1317, 1321 (D.C. Cir. 1987)). Such dismissal is an "absolute right" that "leaves no role for the court to play." Am. Soccer Co., v. Score First Enters., 187 F.3d 1108, 1109-10 (9th Cir. 1999).
The pleadings in this case have not yet closed and no defendant has filed an answer. Rule 41 therefore allows voluntary dismissal. Accordingly, and with good cause appearing,
It is hereby ORDERED that the Report and Recommendation is ACCEPTED and ADOPTED to the extent it is consistent with this Order [Doc. 3];
It is further ORDERED that Plaintiff's Motion to Dismiss Complaint without Prejudice [Doc. 4] is GRANTED;
This action is DISMISSED without prejudice, and this case shall be CLOSED.
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JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE