Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

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RP

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Michael Keith Smith, Plaintiff, vs. Jack B. Silver, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

No. CIV 04-592-PHX-PGR (MEA) ORDER

Pending

before

this

Court

is

Plaintiff's

Motion

To

Dismiss (Document #16), filed on October 3, 2005. In his Motion To Dismiss, Plaintiff moves this Court "for dismissal, without prejudice, of the above-entitled action, on the grounds that the claims and issues in this action are identical action." that "In to those presented in a previously dismissed

(Motion To Dismiss at 1). CV03-2393-PHX-PGR, a

Plaintiff also states judgment Id. was

declaratory

dismissed without prejudice on July 23, 2004."

Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, the Court may, at the Plaintiff's insistence, dismiss this action by order of the Court. Rule 41(a)(2) of

the Federal Rules of Civil Procedure also provides that
Document 17 Filed 03/31/2006 Page 1 of 3

Case 2:04-cv-00592-PGR--MEA

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"unless otherwise stated in the order, a dismissal under this paragraph is without prejudice." Under Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure, Plaintiff also has the right to voluntarily dismiss this action without order of the Court "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, whichever first occurs." Although Plaintiff has filed a Motion To Dismiss, rather than a Notice of Voluntary Dismissal Pursuant to Rule

41(a)(1)(i) of the Federal Rules of Civil Procedure, the Court notes that the posture of Plaintiff's case meets the

requirements of Rule 41(a)(1)(i) in that the action has not yet been served, and no Defendant has filed an answer or a motion for summary judgment. Accordingly, Plaintiff's Motion

To Dismiss will be construed as a Motion To Dismiss Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, and it will be granted. The Court will order that Plaintiff's

"Second Amended Complaint" (Document #15) and this action be dismissed without prejudice, and the Clerk of the Court will be directed to enter judgment accordingly. IT IS THEREFORE ORDERED: (1) That Plaintiff's Motion To Dismiss (Document #16)

which the Court CONSTRUES as a Motion To Dismiss Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, is GRANTED; (3) That pursuant to Rule 41(a)(2) of the Federal Rules

of Civil Procedure Plaintiff's "Second Amended Complaint"
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Case 2:04-cv-00592-PGR--MEA

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(Document

#15)

and

this

action

are

DISMISSED

WITHOUT

PREJUDICE, and the Clerk of the Court is DIRECTED TO ENTER JUDGMENT accordingly. DATED this 30th day of March, 2006.

Case 2:04-cv-00592-PGR--MEA

- 3 Document 17 Filed 03/31/2006

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