Opinion
Civil Action No. 05-cv-02224-OES.
December 12, 2005
ORDER DISMISSING CASE
On November 22, 2005, Plaintiff Ruben H. Pappan filed a "Motion to Withdrawal Complaint by Plaintiff Under C.C.R. § 11-5(b)." In the Motion, Mr. Pappan requests that the Court dismiss the instant action, because he believes he does not have a claim. Plaintiff also requests that the $21.00 initial partial filing fee be returned to him and that he not be held responsible for payment of the $250.00 filing fee.
The Court must construe the Motion to Dismiss liberally, because Mr. Pappan is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Accordingly, the Court will construe the Motion as a Notice of Voluntary Dismissal filed pursuant to Fed.R.Civ.P. 41(a)(1) and dismiss the action.
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. . . ." No answer has been filed by Defendants in this action.
Further, a voluntary dismissal under Rule 41(a)(1) is effective immediately upon the filing of a written notice of dismissal, and no subsequent court order is necessary. See J. Moore, Moore's Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968). The Notice, therefore, closes the file as of November 22, 2005. See Hyde Constr. Co., 388 F.2d at 507.
As for the return of the $21.00, the Court has not received a payment of $21.00 from Mr. Pappan. Accordingly, it is
ORDERED that the Motion is construed as a Notice of Voluntary Dismissal pursuant to Fed.R.Civ.P. 41(a)(1). It is
FURTHER ORDERED that the voluntary dismissal is without prejudice and is effective as of November 22, 2005, the date Mr. Pappan filed the Notice in the action. It is
FURTHER ORDERED that judgment is entered in favor of Defendants and against Plaintiff.