Opinion
No. 1:16-cv-00941-DAD-MJS
10-11-2016
KIT P. JORY, an individual, Plaintiff, v. BANK OF AMERICA, N.A.; CALIBER HOME LOANS, INC.; SUMMIT MANAGEMENT COMPANY; and DOES 1 through 20, inclusive, Defendants.
ORDER DIRECTING THE CLERK OF THE COURT TO TERMINATE DEFENDANT BANK OF AMERICA, N.A.
(Doc. Nos. 7, 21)
On October 7, 2016, plaintiff filed a notice of voluntary dismissal of defendant Bank of America, N.A. with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Doc. No. 21.) Under Rule 41(a), a plaintiff may dismiss an action without a court order if he or she files "a notice or dismissal before the opposing party serves either an answer or a motion for summary judgment" or "a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. Pro. 41(a)(1)(A)(i)-(ii). Here, defendant Bank of America, N.A. has not filed an answer or a motion for summary judgment, but has filed a motion to dismiss. (See Doc. No. 7.) "Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1)." Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Miller v. Reddin, 422 F.2d 1264, 1265 (9th Cir. 1970)). In light of this, defendant Bank of America, N.A. has been dismissed with prejudice. See Fed. R. Civ. P. 41(a)(1)(A)(i); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997). Accordingly, the court directs the Clerk of Court to terminate defendant Bank of America, N.A. The pending motion to dismiss by defendant Bank of America, N.A. (Doc. No. 7) is rendered moot by this order. IT IS SO ORDERED. Dated: October 11 , 2016
/s/_________
UNITED STATES DISTRICT JUDGE