Opinion
Civil Action No. 05-cv-00694-WYD-CBS.
December 6, 2005
ORDER
This civil action comes before the court on Plaintiff Shivers' "Motion to Dismiss without Prejudice" (filed November 4, 2005) (doc. # 26), among other things. Pursuant to the Order of Reference dated June 30, 2005 and the memorandum dated November 4, 2005, the Motion was referred to the Magistrate Judge. The court has reviewed the pending Motion, the entire case file, and the applicable law and is sufficiently advised in the premises.
Shivers seeks to voluntarily dismiss this civil action. ( See Motion ("Plaintiff prays that this court dismiss this lawsuit without prejudice"). Due to Shivers' representations that he was requesting dismissal "on the grounds that he is mentally incompetent to function normally as the result of medications," the court held a hearing on December 6, 2005 to clarify Shivers' intent. Shivers articulately explained that he wishes to dismiss his complaint without prejudice and refile it a later date. ( See Shivers' statements at hearing held December 6, 2005). Shivers stated to the court that he intended to file a notice of dismissal pursuant to Fed.R.Civ.P. 41. (Shivers' statements at hearing held December 6, 2005).
"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). While Defendants filed a Motion to Dismiss on August 26, 2005, they have not filed an answer or a 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 Plaintiff Shivers' "Motion to Dismiss without Prejudice" (filed November 4, 2005) (doc. # 26) shall be treated as a notice of dismissal pursuant to Rule 41(a)(1)(I), voluntarily dismissing this civil action. All other pending motions (docs. # 18 and # 8) are thus moot.