Opinion
Case No. CV 17-87-AB (SP)
09-22-2017
JAPHETH MATUTE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM AND ORDER GRANTING VOLUNTARY DISMISSAL
On January 5, 2017, pro se plaintiff Japheth Matute filed a Complaint for review of a social security decision. On July 27, 2017, defendant moved to dismiss the Complaint for lack of subject matter jurisdiction because plaintiff has not yet received a final decision of the Commissioner of the Social Security Administration. The Court issued a Report and Recommendation on August 24, 2017, recommending the motion to dismiss be granted and the case dismissed without prejudice. Defendant has since withdrawn the motion to dismiss that was the subject of the Report and Recommendation, and filed a substantially identical motion to dismiss on September 5, 2017.
Meanwhile, on August 28, 2017, plaintiff filed a Request for Dismissal, asking the Court to dismiss the action without prejudice. Under Rule 41(a) of the Federal Rules of Civil Procedure, a plaintiff may voluntarily dismiss an action, without a court order, by filing "a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A)(i). Such dismissal is without prejudice. Fed. R. Civ. P. 41(a)(1)(B).
No answer has yet been filed in this case. Accordingly, plaintiff may voluntarily dismiss this action without prejudice. Moreover, although the Court already issued a Report and Recommendation to grant defendant's motion to dismiss, that motion has since been withdrawn (although replaced with a functionally identical motion), and the recommendation was to dismiss without prejudice in any event, just as plaintiff asks.
IT IS THEREFORE ORDERED that plaintiff's voluntary dismissal of this action is GRANTED, and that Judgment be entered dismissing the Complaint and this action without prejudice. DATED: September 22, 2017
/s/_________
HONORABLE ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
SHERI PYM
UNITED STATES MAGISTRATE JUDGE