Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1989)

MEMORANDUM^** 

Michael J. Heun appeals pro se the district court's order granting defendants' motion for dismissal of his action with prejudice. Heun contends that the district court erred because he filed a motion to voluntarily dismiss his action without prejudice under Fed. R. Civ. P. 41(a) (1), and that under this rule, the court had no power to grant the defendants' motion to dismiss with prejudice. Fed. R. Civ. P. 41(a) (1). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.

Heun filed an action alleging that he was not a "taxpayer," seeking declaratory relief exempting him from federal income taxes. On April 21, 1989, Heun filed a motion to voluntarily dismiss his action pursuant to Fed. R. Civ. P. 41(a) (1). On April 24, 1989, the district court granted the government's motion to dismiss Heun's action with prejudice and denied Heun's motion for voluntary dismissal.

Although Heun asserts frivolous arguments in his complaint, this court has left little room for interpretation of Rule 41(a) (1). See Hamilton v. Shearson-Lehman American Exp., Inc., 813 F.2d 1532, 1533 (9th Cir. 1987). Until service by an adverse party of an answer or a motion for summary judgment, the plaintiff may have the action dismissed merely by filing a notice of dismissal. Id. A voluntary dismissal by a plaintiff under Rule 41(a) (1) automatically terminates the action; no order of the court is required. Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970). When Heun filed his Rule 41(a) (1) dismissal, the defendants had not served him with a motion for summary judgment or an answer. The district court therefore erred in granting defendants' motion to dismiss with prejudice.

Heun should be aware, however, that if he initiates a second action based on the same allegations, a second voluntary dismissal under Rule 41(a) (1) will operate as an adjudication on the merits of his claim. See Fed. R. Civ. P. 41(a) (1). Moreover, if Heun raises his argument before this court that he is not a taxpayer, or other arguments which have been repeatedly recognized by this court as frivolous, he may be subject to sanctions on appeal. See Fed. R. App. P. 38; 28 U.S.C. § 1912.

The order of the district court is reversed and remanded with instructions to dismiss Heun's complaint without prejudice.

REVERSED and REMANDED.