Opinion
2:21-cv-01493 TLN GGH P
09-28-2021
JOSE MORENO, Petitioner, v. DANNY SAMUEL, Acting Warden, Respondent.
ORDER
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner proceeding through counsel, has filed a motion to dismiss requesting that this action be dismissed without prejudice and that the Court permit petitioner's counsel to withdraw. ECF No. 7. The court construes petitioner's motion to dismiss as a notice of voluntary dismissal without prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i).
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[.]” Fed.R.Civ.P. 41(a)(1)(A)(i). “The filing of a notice of voluntary dismissal with the court [pursuant to Rule 41(a)(1)] automatically terminates the action as to the defendants who are the subjects of the notice. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants.” Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)(citations omitted). Here, no answer or motion to dismiss has been filed. Accordingly, petitioner's notice of voluntary dismissal is effective without court order.
Additionally, petitioner requests to have his counsel withdrawn. ECF No. 7 at 3 ⁋3. “[A]n attorney who has appeared may not withdraw leaving the client in propria persona without leave of court upon noticed motion and notice to the client and all other parties who have appeared.” Cal. E.D. Cal. 182(d). Given petitioner's notice of voluntary dismissal, and this action been effectively closed, petitioner's motion to withdraw is moot. “Once the notice of dismissal has been filed, the district court loses jurisdiction over the dismissed claims and may not address the merits of such claims or issue further orders pertaining to them.” Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir. 2001).
Accordingly, IT IS HEREBY ORDERED that:
1. The motion to withdraw as counsel for petitioner (ECF No. 7) is moot; and
2. Petitioner's motion to dismiss (ECF No. 7) is construed as a notice of voluntary dismissal without prejudice pursuant to Fed. R. Civ. R. 41(a)(1)(A)(i);
3. The Clerk of the Court is directed to close this case.