ANTHONY ISHII, District Judge
Plaintiff Norman Parsons has filed a notice of voluntary dismissal with prejudice. Federal Rules of Civil Procedure 41(a) provides that "an action may be dismissed by the plaintiff without order of court (i) 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." The Ninth Circuit has stated
A plaintiff may dismiss his action so long as the plaintiff files a notice of dismissal prior to the defendant's service of an answer or motion for summary judgment. The dismissal is effective on filing and no court order is required. The plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice. The filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice. Unless otherwise stated, the dismissal is ordinarily without prejudice to the plaintiff's right to commence another action for the same cause against the same defendants. Such a dismissal leaves the parties as though no action had been brought.
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997), citations omitted. "A motion to
dismiss is neither an answer nor, unless accompanied by affidavits discussing matters outside the pleadings that are not excluded by the court, a motion for summary judgment; thus, unless formally converted into a motion for summary judgment under Rule 56, a motion to dismiss under Rule 12 does not terminate the right of dismissal by notice." 9 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 2363 (2nd ed. 1995).
Defendant We The People Foundation has filed a motion to dismiss under Federal Rules of Civil Procedure 12, but neither an answer nor a motion for summary judgment has been filed or served in this case. Therefore, IT IS HEREBY ORDERED that the Clerk is ordered to close this case in light of Plaintiff's Fed.R.Civ.Proc. 41(a)(i) voluntary dismissal. All pending motions in the case are dismissed as moot.
IT IS SO ORDERED.