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Frey v. Sacor Financial Incorporated

United States District Court, D. Arizona

August 27, 2014

Marjorie Frey, Plaintiff,
v.
Sacor Financial Incorporated, Defendant.

ORDER

CHARLES R. PYLE, District Judge.

The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. ยง 636(c).

Pending before the Court are: (1) Defendant's Motion to Dismiss Case and to Declare Plaintiff a Vexatious Litigant (Doc. 5); (2) Plaintiff's "Motion to Dismiss Defendants [sic]" (Doc. 8); (3) Plaintiff's Motion for Hearing (Doc. 10); (4) Plaintiff's Motion to Dismiss (Doc. 13); and (5) Plaintiff's Motion to Amend Motion to Dismiss (Doc. 14).

As discussed below, Plaintiff's Motion to Dismiss (Doc. 13) automatically terminated this action and, thus, all other motions are moot.

BACKGROUND

Plaintiff, acting pro se, filed the instant action under the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. (Doc. 1). In response, Defendant filed a Motion to Dismiss (Doc. 5) for lack of subject matter jurisdiction and for failure to state a claim, arguing inter alia, that Plaintiff's action is foreclosed based upon a state court action in which Plaintiff was a named defendant. Plaintiff has also filed a Motion to Dismiss Defendant (Doc. 8), which appears to be a response to Defendant's Motion to Dismiss. Thereafter, while Defendant's Motion to Dismiss was still pending, Plaintiff filed a Motion to Dismiss (Doc. 13) and a Motion to Amend her Motion to Dismiss (Doc. 14).

DISCUSSION

Plaintiff's Motion to Dismiss seeks dismissal of this action "because of Plaintiff's unforeseen medical circumstances." (Doc. 13). In her Motion to Amend Motion to Dismiss (Doc. 14), Plaintiff requests dismissal without prejudice to returning to court with an attorney in the event Plaintiff receives further contact or complaints from Defendant. She also states she "prays for peace from [Defendant]" and "Defendant wants peace from [Plaintiff] re court's permission before filing against [Defendant] in [sic] future... With the above observation, Plaintiff and Defendant want the same conclusion-no contact with and from one another." (Motion to Amend Motion to Dismiss, p. 1). Defendant reads Plaintiff's Motion to Amend as "masquerad[ing] [as] a request for injunctive relief" and requests that the Court, instead, grant its pending Motion to Dismiss and enter dismissal with prejudice. (Response (Doc. 15), pp. 1-2).

Under Rule 41 of the Federal Rules of Civil Procedure, "the plaintiff may 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). The Ninth Circuit has been clear that Rule 41 confers on the plaintiff

an absolute right to voluntarily dismiss his [or her] action prior to service by the defendant of an answer or a motion for summary judgment. A plaintiff may dismiss his [or her] action so long as the plaintiff files a notice of dismissal prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required.... The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice.... Such a dismissal leaves the parties as though no action had been brought.

American Soccer Co., Inc. v. Score First Enterprises, 187 F.3d 1108, 1110 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d. 688, 692 (9th Cir. 1997)) (reversing district court's order vacating voluntary dismissal); see also Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993) (the plaintiff's filing of the notice of dismissal under Rule 41(a)(1)(A)(i) "closes the file"). Further, because the language of Rule 41(a)(1)(A)(i) is unequivocal, the "absolute right' for a plaintiff voluntarily to dismiss an action when the defendant has not yet served an answer or a summary judgment motion leaves no role for the court to play." American Soccer Co., Inc., 187 F.3d at 1110. Therefore, in light of Plaintiff's Motion to Dismiss (Doc. 13), there is no role for this Court to play other than to ensure that the Clerk of Court terminates this action. See id. The Ninth Circuit has observed that such practice "does not prejudice defendants. If defendants desire to prevent plaintiffs from invoking their unfettered right to dismiss actions under rule 41(1)(a) [they] may do so by taking the simple step of filing an answer.'" Id. at 1112 (quoting Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977)).

In her Motion to Amend Motion to Dismiss, Plaintiff essentially seeks dismissal without prejudice. Rule 41(a)(1)(B) provides that:

Unless the notice [of voluntary dismissal]... states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

Fed.R.Civ.P. 41(a)(1)(B). In light of Rule 41(a)(1)(B), Plaintiff's Motion to Dismiss (Doc. 13) terminated this action without prejudice and renders Plaintiff's ...


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