Opinion
Civil Action No. 07-cv-00499-WYD-CBS.
June 19, 2007
ORDER TREATING MOTION AS NOTICE OF VOLUNTARY DISMISSAL
This civil action comes before the court on Plaintiff Mr. Fiffe's "Motion to Dismiss" (filed June 18, 2007) (doc. # 9). Pursuant to the Order of Reference dated March 29, 2007 (doc. # 7) and the memorandum dated June 18, 2007 (doc. # 10), the Motion was referred to the Magistrate Judge. The court has reviewed the Motion, the entire case file, and the applicable law and is sufficiently advised in the premises.
Mr. Fiffe seeks to voluntarily dismiss this civil action. Fed.R.Civ.P. 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). The record reflects no proof of service of this civil action on Defendant and Defendant has not filed an answer or motion for summary judgment.
"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:
1. Plaintiff Fiffe's "Motion to Dismiss" (filed June 18, 2007) (doc. # 9) shall be treated as a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(I), voluntarily dismissing this civil action.
2. The Rule 16(b) Scheduling Conference set on Monday June 25, 2007 at 10:00 a.m. is vacated.