Jorge Gutierrez v. HSBC Bank USA National Association

Case 5:22-cv-01781-DOC-SP Document 16 Filed 02/27/23 Page 1 of 2 Page ID #:235 — 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 JORGE GUTIERREZ, ) Case No. 5:22-cv-01781-DOC (SP) ) 12 Plaintiff, ) ) 13 v. ) ORDER GRANTING ) VOLUNTARY DISMISSAL 14 HSBC BANK USA NATIONAL ) ASSOCIATION, et al., ) 15 ) Defendants. ) — 16 — 17 On October 11, 2022, pro se plaintiff Jorge Gutierrez initiated this action by 18 filing a civil rights Complaint under 42 U.S.C. § 1983 . Defendants filed an 19 Answer to the Complaint on November 14, 2022, and then filed a motion for 20 judgment on the pleadings on January 18, 2023, which is pending. 21 Plaintiff did not file a response to the motion for judgment on the pleadings 22 by the February 17, 2023 deadline to do so. Instead, on February 22, 2023, 23 plaintiff filed a Notice of Dismissal, in which he states he is dismissing this action 24 in its entirety. The Court construes this as a request for voluntary dismissal of this 25 action. 26 Under Rule 41(a) of the Federal Rules of Civil Procedure, a plaintiff may 27 voluntarily dismiss an action, without a court order, by filing “a notice of dismissal 28 before the opposing party serves either an answer or a motion for summary ase 5:22-cv-01781-DOC-SP Document16 Filed 02/27/23 Page 2of2 Page ID #:23 1 || judgment.” Fed. R. Civ. P. 41(a)(1)(A)(G). Such dismissal is without prejudice. 2 || Fed. R. Civ. P. 41(a)(1)(B). If the opposing party has answered or moved for 3 || summary judgment and there is no stipulation of dismissal, a plaintiff requires a 4 || court order to voluntarily dismiss an action. Fed. R. Civ. P. 41(a)(2). “In ruling on 5 || a motion for voluntary dismissal, the District Court must consider whether the 6 || defendant will suffer some plain legal prejudice as a result of the dismissal.” 7 || Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982). 8 Although defendants here have answered, they have not yet moved for 9 || summary judgment, and this case 1s still in its early stages. Consequently, it does 10 || not appear that defendants will suffer any prejudice by plaintiff's voluntary 11 || dismissal of this action. The Court will therefore allow plaintiff to voluntarily 12 || dismiss this action, without prejudice. See Westlands Water Dist. v. U.S., 100 F.3d 13 | 94, 96 (9th Cir. 1996) (“the threat of future litigation which causes uncertainty is 14 || insufficient to establish plain legal prejudice” so as to warrant denial of voluntary 15 || dismissal without prejudice). 16 IT IS THEREFORE ORDERED that plaintiff's voluntary dismissal of this 17 || action is GRANTED, and that Judgment be entered dismissing the Complaint and 18 || this action without prejudice. — 19 — 20 || DATED: February 27, 2023 Alon . 51 AO Cnritw 22 HONORABLE DAVID O. CARTER 33 UNITED STATES DISTRICT JUDGE — 24 — — 25 — — 26 — — 27 — — 28 —