Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

American Economy Insurance Co. v. Herrera

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 17, 2008

AMERICAN ECONOMY INSURANCE COMPANY, AN INDIANA CORPORATION, PLAINTIFF,
v.
NICEFORO HERRERA, INDIVIDUALLY AND DOING BUSINESS AS ACUPULCO'S PRODUCE MARKET; NICHOLAS M. FINTZELBERG DOING BUSINESS AS MILNIK TRUST PROPERTIES; LUIS BENITEZ; AND JOHANNA BENITEZ, BY AND THROUGH HER GUARDIAN AT LITEM, LUIS BENITEZ, DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Motion for Partial Summary Judgment (Doc. # 44) filed by American Economy Insurance Company ("American Economy"), and the Motion to Dismiss Defendants Luis and Johanna Benitez without Prejudice (Doc. # 69) filed by American Economy.

On October 30, 2006, American Economy filed a Complaint in this matter seeking declaratory relief and rescission (Doc. # 1).

On September 13, 2007, American Economy filed the Motion for Partial Summary Judgment. No party filed an opposition to the Motion for Partial Summary Judgment.

On January 16, 2008, Magistrate Judge Cathy Ann Bencivengo held a mandatory settlement conference and issued an order following the mandatory settlement conference (Doc. # 63). The order states that Defendants Herrera and Fintzelberg appeared with counsel, and that Defendant Benitez failed to appear on his own behalf and as guardian ad litem for Defendant Johanna Benitez. The order states that the "parties who were present resolved the matter on the following terms. Plaintiff American Economy will dismiss its claim with prejudice against Defendant Fintzelberg . . . . Plaintiff American Economy and Defendant Herrera will submit a joint motion for a consent judgment of rescission." Id.

On January 18, 2008, American Economy and Defendant Fintzelberg filed a joint motion to dismiss with prejudice the complaint against Nicholas Fintzelberg, doing business as Milnik Trust Properties (Doc. # 64). On January 23, 2008, this Court issued an order granting the joint motion to dismiss and dismissing all claims against Defendant Fintzelberg with prejudice.

American Economy and Defendant Herrera have not yet filed the joint motion for a consent judgment of rescission pursuant to the Magistrate Judge's January 16, 2008 order.

On March 14, 2008, American Economy filed the Motion to Dismiss Defendants Luis and Johanna Benitez without Prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. American Economy requests that the Benitezes be dismissed from this case on grounds that American Economy does not need to proceed against them because they have not filed a wrongful death action in this case, and the statute of limitations for wrongful death actions has passed. American Economy states that it moves for voluntary dismissal "[s]ince a stipulation is impossible given the Benitezes' unknown whereabouts." Mot. to Dismiss, p. 2. No party filed an opposition to the Motion to Dismiss.

Rule 41(a) of the Federal Rules of Civil Procedure governs the voluntary dismissal of an action in federal court. Rule 41(a)(2) provides that unless a plaintiff files a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, or the parties stipulate to the dismissal of the action, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. § 41(a)(2). The decision to grant or deny a motion pursuant to Rule 41(a)(2) is "within the sound discretion of the trial court and may be reviewed only for abuse of that discretion." Id. A court should grant a Rule 41(a)(2) motion for voluntary dismissal unless the defendant will "suffer clear legal prejudice, other than the prospect of a subsequent suit on the same facts." Phillips v. Illinois Central Gulf Railroad, 874 F.2d 984, 986 (9th Cir. 1989). The Ninth Circuit interprets "legal prejudice" to mean "prejudice to some legal interest, some legal claim, some legal argument." Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996).

No party asserts that voluntary dismissal will result in legal prejudice. The Court concludes that voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure will not result in "prejudice to some legal interest, some legal claim, some legal argument." See Westlands Water Dist., 100 F.3d at 96. The Court will grant the Motion to Dismiss filed by American Economy.

In light of the Court's dismissal of all claims against Defendants Fintzelberg and the Benitezes, and the resolution of the matter between American Economy and Defendent Herrera as indicated in the Magistrate Judge's January 16, 2008 order, the Court will deny the Motion for Partial Summary Judgment without prejudice.

Conclusion

IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment (Doc. # 44) is DENIED without prejudice. It is further ordered that the Motion to Dismiss Defendants Luis and Johanna Benitez without Prejudice (Doc. # 69) is GRANTED. All claims against Defendants Luis and Johanna Benitez are DISMISSED without prejudice.

WILLIAM Q. HAYES United States District Judge

20080417

© 1992-2008 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.