Mason v. Colon-Ortez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN JACKIE D. MASON, Plaintiff, v. Case No. 22-CV-1316 FRANCIS COLON-ORTEZ, et al., Defendants. ORDER Jackie D. Mason, who is representing himself, brought this action in Milwaukee County Circuit Court against Francis Colon-Ortez, “VA Medical Center,” and Joan P. Mason. The VA Medical Center, more properly designated as the United States Department of Veterans Affairs (VA), and its employee, Francis Colon-Ortez, removed the action to federal court pursuant to 28 U.S.C. § 1442 (a)(1). (ECF No. 1.) Jackie Mason, in turn, filed a motion to dismiss the VA and Colon-Ortez and remand the action to state court. (ECF No. 3.) Under Fed. R. Civ. P. 41(a)(1)(A), a plaintiff has an absolute right at the early stages of a case to dismiss the action as a whole or individual defendants or claims from the action. Pedrina v. Chun, 987 F.2d 608 , 610 (9th Cir. 1993); Madsen v. Park City, 6 F. Supp. 2d 938, 943 (N.D. Ill. 1998) (following Pedrina). “The right of voluntary dismissal by notice prior to service of the answer or a motion for summary judgment extends as fully to cases removed from a state court as it does to cases commenced in a federal court.” Crook v. WMC Mortg. Corp., No. 06-cv-535JPG, 2006 U.S. Dist. LEXIS 72616 , at *4 (S.D. Ill. Oct. 5, 2006) (quoting 9 Wright & Miller, Federal Practice & Procedure § 2363 (collecting cases)). Therefore, Francis ColonOrtez and the VA Medical Center are dismissed as defendants. Having dismissed the federal defendants, no basis for federal jurisdiction remains. Therefore, remand to state court is proper. See, e.g., Torres v. CBS News, 879 F. Supp. 309, 321 (S.D.N.Y. 1994). IT IS THEREFORE ORDERED that Francis Colon-Ortez and VA Medical Center are dismissed as defendants/respondents, and this action is remanded to Milwaukee County Circuit Court. Dated at Milwaukee, Wisconsin this 17th day of November, 2022. EN H: WILLIAM E. DUFFI U.S. Magistrate Judge