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McKay v. Huelsmann

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


March 10, 2010

JAMES C. MCKAY AND EILEEN L. MCKAY, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
LAVERN HUELSMANN, DOING BUSINESS AS SENIOR RETIREMENT SERVICES, FCB NEW BADEN BANK, GERMANTOWN TRUST AND SAVINGS BANK, TEMPO BANK, CENTRUE BANK, AND SCOTTRADE, INC., DEFENDANTS.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM & ORDER

This matter comes before the Court on Plaintiffs' Notice (Doc. 33) of voluntary dismissal without prejudice, which is labeled as a motion for voluntary dismissal. Given the nature of the filing, the Court will be treating it as a notice of voluntary dismissal. Defendant FCB New Baden Bank filed a Response (Doc. 34).

Although Plaintiffs cite Federal Rule of Civil Procedure 41(a)(2) as the basis for dismissal, Rule 41(a)(1)(A)(i) provides a more direct route to the relief sought. Pursuant to Rule 41(a)(1)(A)(i), a plaintiff has an absolute right to dismiss an action without a court order at any time before service by an adverse party of an answer or a motion for summary judgment, whichever first occurs. No defendant has filed an answer or motion for summary judgment in this case.

Accordingly, the Court DISMISSES without prejudice all of Plaintiffs' claims in this matter. Further, the Court DENIES as moot the pending Motions to Dismiss (Docs. 20, 25).

Finally, the Court DIRECTS the Clerk of Court to enter judgment accordingly.

IT IS SO ORDERED.

20100310

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