Opinion
Case No.: 12-cv-01596-AWI-DLB
02-01-2013
JOHN F. LEMKE Plaintiff, v. WELLS FARGO, N.A., LOANCITY; US BANK NATIONAL ASSOCIATION FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CSMC MORTGAGE BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-7, MORTGAGE ELECTRONIC REGISTRY SYSTEMS (MERS); AMERICAS SERVICING COW ANY (ASC); NDEX WEST, LLC., and Does I - X, Inclusive, Defendants.
JOHN F. LEMKE
110 Bridlewood Lane
Copperopolis, California 95228
NOTICE OF VOLUNTARY
DISMISSAL
FRCP Rule 41(a)
TO DEFENDANTS, THEIR COUNSELS, AND ALL INTERESTED PARTIES:
Pursuant to Federal Rule of Civil Procedure 41(a), Plaintiff JOHN F. LEMKE hereby notifies this Court and the parties that he voluntarily dismisses, without prejudice, all his claims against all Defendants. Rule 41(a) provides that a notice of dismissal is appropriate for voluntary withdrawal "before the opposing party serves either an answer or a motion for summary judgment."
In this case, Defendants have filed neither an answer nor a motion for summary judgment. Plaintiff filed this action on September 28, 2012; Defendants filed a Motion to Dismiss and Motion to Strike on or about October 30, 2012. While Defendants have filed pleadings, including their Motion to Dismiss , they have yet to file the documents necessary to forestall a voluntary dismissal by notice. In Wilson v. City of San Jose, the Ninth Circuit explained:
Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant for an answer or a motion for summary judgment. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (citing Hamilton v. Shearson-Lehman American Express, 813 F.2d 1532, 1534 (9th Cir. 1987)). A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. Id. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. Id.; Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993). The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Concha, 62 F.2d at 1506. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiffs right to commence another action for the same cause against the same defendants. Id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934-35 (9th Cir. 1987)). Such a dismissal leaves the parties as though no action had been brought. Id. Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997
Respectfully submitted,
By: ______________________________
JOHN F. LEMKE, Plaintiff in Pro Per
It is so Ordered.
________________________
United States District Judge