MASKE v. IBM CORPORATION

Full title: JERRY L. MASKE, Plaintiff, v. IBM CORPORATION, Defendant

Court: United States District Court, D. Colorado

Date published: May 21, 2009

Civil Action No. 09-cv-00581-BNB (D. Colo. May. 21, 2009)

Opinion

Civil Action No. 09-cv-00581-BNB.

May 21, 2009

ORDER DISMISSING CASE

ZITA WEINSHIENK, Senior District Judge

Plaintiff Jerry L. Maske currently resides in Aurora, Colorado. Mr. Maske initiated this action by filing a Complaint under Title I of the Americans with Disabilities Act (ADA). Upon review of the Complaint, Magistrate Judge Boyd N. Boland entered an order directing Mr. Maske to file an Amended Complaint on a Court-approved form used in filing a Title VII action and to assert that he has met the statutory prerequisite for maintaining an employment discrimination lawsuit in federal court, because the ADA has adopted the Title VII's administrative exhaustion requirements.

On May 14, 2009, Mr. Maske filed a Letter with the Court stating that "I cannot obtain a right-to-sue letter from the EEOC until July 15, 2009. In two months, I will file a civil complaint." The Court must construe the Letter liberally because Mr. Maske is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991).

Rule 41(a)(1)(A) provides that "the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. . . ." No answer has been filed by Defendant in this action. Further, a voluntary dismissal under Rule 41(a)(1)(A) 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) (2^d ed. 1995); Hyde Constr. Co. v. Koehring Co. , 388 F.2^d 501, 507 (10^th Cir. 1968).

The Court, therefore, construes the Letter as a Notice of Dismissal filed pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of May 14, 2009, the date the Notice was filed with the Court. See Hyde Constr. Co. , 388 F.2^d at 507. Accordingly, it is

ORDERED that the Letter is construed as a Notice of Dismissal filed pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i) and is effective as of May 14, 2009, the date Mr. Maske filed the Notice in this action. It is

FURTHER ORDERED that the dismissal is without prejudice.