Brewster v. USA, No. 4:2021cv00180 - Document 7 (E.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER. ORDERED that Movant's notice of dismissal (Dkt. # 5 ) is self-effectuating and terminates the case in and of itself, and the case is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). All motions by any party not previously ruled upon are DENIED. Signed by District Judge Marcia A. Crone on 4/21/2021. (daj, )
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Brewster v. USA Doc. 7 UNITED STATES DISTRICT COURT TOMMY ALAN BREWSTER, #21329-078 versus UNITED STATES OF AMERICA EASTERN DISTRICT OF TEXAS § § § § § CIVIL ACTION NO. 4:21-CV-180 CRIMINAL ACTION NO. 4:13-CR-184(1) MEMORANDUM OPINION AND ORDER Pro se Movant Tommy Alan Brewster filed the above-styled and numbered Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. On April 19, 2021, Movant filed a response to the United States Magistrate Judge’s Order, asking that his case be withdrawn (Dkt. #5), which is construed as a Notice of Dismissal. Voluntary dismissals are governed by Federal Rule of Civil Procedure 41(a)(1)(A) that provides, in pertinent part, the movant “ may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” “Unless the notice…states otherwise, the dismissal is without prejudice.” Fed. R. Civ. P. 41(a)(1)(B). The notice of dismissal is self-effectuating and terminates the case in and of itself; no order or other action of the District Court is required. In re Amerijet Int’l, Inc., 785 F.3d 967, 973 (5th Cir. 2015) (per curiam). Thus, once a movant has moved to dismiss under Rule 41(a)(1)(A)(i), the case is effectively terminated; the Court has no power or discretion to deny his right to dismiss or to attach any condition or burden to that right. Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir. 1976); In re Amerijet Int’l, Inc., 785 F.3d at 973; Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (party has absolute right to dismiss his legal action under Rule 41(a) prior to the filing of an answer or motion for summary judgment). In the present case, no answer or motion for summary judgment has been filed; thus, Movant is entitled to the voluntary dismissal of the case without prejudice. Movant’s case was Dockets.Justia.com dismissed the moment the notice (Dkt. #5) was filed with the Clerk. Moreover, after a notice of voluntary dismissal is filed, the district court loses jurisdiction over the case. In re Amerijet Int’l, Inc., 785 F.3d at 973. Accordingly, it is ORDERED that Movant’s notice of dismissal (Dkt. #5) is self-effectuating and terminates the case in and of itself, and the case is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). All motions by any party not previously ruled upon are DENIED. SIGNED at Beaumont, Texas, this 21st day of April, 2021. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 2
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