Opinion
Civil Action No. 05-cv-01663-OES.
September 28, 2005
ORDER DISMISSING CASE
On September 20, 2005, Plaintiff C. Eli-Jah Hakeem Muhammad, a.k.a. Christopher Mitchell, filed a "Plaintiff's Motion for Voluntary Dismissal and Dismissal without Prejudice." In the Motion, Plaintiff states that he intends to file the claims he has asserted in the instant action in an amended complaint in Case No. 05-cv-1512-OES. Accordingly, the Court will construe the Motion as a Notice of Voluntary Dismissal filed pursuant to Rule 41(a)(1) and dismiss the action.
Fed.R.Civ.P. 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 Defendant 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 September 20, 2005. See Hyde Constr. Co., 388 F.2d at 507. Accordingly, it is
ORDERED that the Motion for Voluntary Dismissal 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 September 20, 2005, the date Plaintiff filed the Notice in the action.