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United States v. Hoffman

United States District Court, D. Nevada

April 26, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
CHARLES HOFFMAN, Defendants.

          ORDER

         Presently before the court is petitioner Charles Hoffman's motion for voluntary dismissal of pending motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF Nos. 83, 84). (ECF No. 88). The government filed a response (ECF No. 89), to which petitioner replied (ECF No. 90).

         Also before the court is petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF Nos. 83, 84). The government filed a response. (ECF No. 86).

         Also before the court is petitioner's motion to defer ruling for 30 days. (ECF No. 87).

         I. Voluntary Dismissal

         Petitioner moves to voluntarily dismiss, pursuant to Federal Rule of Civil Procedure 41(a)(2), his motion to vacate under § 2255 (ECF Nos. 83, 84), asserting that he no longer seeks relief thereunder. (ECF No. 88). In response, the government argues that dismissal under Rule 41(a)(1) is improper because it does not stipulate to the dismissal of petitioner's § 2255 motion, but rather moves for denial thereof. (ECF No. 89).

         Petitioner, however, moves to voluntarily dismiss his § 2255 motion pursuant to Rule 41(a)(2), not Rule 41(a)(1). Thus, the government's stipulation is not required. Federal Rule of Civil Procedure 41(a) governs voluntary dismissal of actions and provides as follows:

(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff 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; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

Fed. R. Civ. P. 41(a).

         Here, no counterclaim has been filed. Therefore, dismissal under Rule 41(a)(2) is proper. Nonetheless, the court finds the better course for dismissal of petitioner's § 2255 motion to be on the merits and based on the statute of limitations rather than Rule 41(a)(2).

         II.28 ...


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