Opinion
Civil Action No. 06-cv-01310-EWN-CBS.
November 29, 2006
ORDER
This civil action comes before the court on the Order to Show Cause filed November 14, 2006 (doc. # 12). Pursuant to the July 19, 2006 Order of Reference (doc. # 6), this civil action was referred to the Magistrate Judge to, inter alia, "[h]ear and determine any pretrial matter. . . ."
Proceeding pro se, Ms. Carroll filed this civil action on or about June 29, 2006. On August 1, 2006, the court issued its "Order Setting Rule 16(b) Scheduling Conference and Rule 26(f) Planning Meeting" on October 10, 2006 at 9:15 a.m. ( See doc. # 8). Ms. Carroll's copy of the Order was not returned in the mail as undeliverable. Ms. Carroll did not appear at the conference on October 10, 2006. A member of the court's staff telephoned Ms. Carroll at approximately 9:15 a.m. on October 10, 2006. Later on October 10, 2006, Ms. Carroll telephoned the Magistrate Judge's chambers. Ms. Carroll indicated that she had not received notice of the conference and provided the court her new address.
On October 10, 2006, the court issued a Minute Order resetting the Rule 16(b) Scheduling Conference on November 14, 2006 at 8:30 a.m. ( See doc. # 10). The court mailed Ms. Carroll's copy of the Minute Order to the address that she provided to the court on October 10, 2006. Ms. Carroll's copy of the Minute Order was not returned in the mail as undeliverable. Ms. Carroll did not appear at the conference on November 14, 2006. A member of the court's staff telephoned Ms. Carroll at approximately 8:30 a.m. on November 10, 2006. Ms. Carroll indicated to the court via telephone that she had forgotten the date of the conference. Ms. Carroll advised the court that she wishes to "drop" this case.
Pursuant to D.C.COLO. LCivR 41.1, the court issued an Order to Show Cause on November 14, 2006 (doc. # 12), directing Ms. Carroll to show good cause in writing on or before Wednesday November 29, 2006 why this civil action should not be dismissed for failure to appear at the October 10, 2006 Conference, failure to appear at the November 14, 2006 conference, failure to prosecute this civil action, and failure to comply with the court's orders, the Local Rules of Practice for the United States District Court for the District of Colorado, and the Federal Rules of Civil Procedure. The court warned Ms. Carroll that failure to timely respond in writing to the Order to Show Cause may result in dismissal of this civil action without further notice.
On November 29, 2006, Ms. Carroll filed her response to the court's Order to Show Cause, stating "I, Sharon Carroll, do not wish to proceed with case number 1:06-cv-1310-EWN-CBS." ( See doc. # 13).
"Rule 41(a)(1) provides that an action may be dismissed by the plaintiff without order of court (I) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment.' " Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003). Defendant has not filed an answer or a motion for summary judgment or ever appeared in this civil action.
"The filing of a notice of dismissal pursuant to Rule 41(a)(1)(i) does not require an order of the court." Janssen, 321 F.3d at 1000 (citation omitted). See also Marex Titanic, Inc. v. The Wrecked Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) (stating voluntary dismissal is "self-executing, i.e., it is effective at the moment the notice is filed with the clerk and no judicial approval is required").
Accordingly, IT IS ORDERED that Ms. Carroll's response (filed November 29, 2006) (doc. # 13) to the court's Order to Show Cause shall be treated as a notice of dismissal pursuant to Rule 41(a)(1)(i), voluntarily dismissing this civil action.