UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 25, 2012
KRISTI L. LUKE, AND JIMMY L. LUKE,
KIA MOTORS AMERICA, INC; AND DOES ONE THROUGH TEN,
The opinion of the court was delivered by: Hon. Kimberly J. Mueller
ORDER RE: STIPULATION TO REMAND AND TO DISMISSAL CERTAIN CAUSES OF ACTION
WITHOUT PREJUDICE Complaint Filed: October 6, 2011 Trial Date: None Set
Upon reviewing the parties' Stipulation to Remand and to Dismiss Certain Causes of Action Without Prejudice, the following is hereby ORDERED:
1. Plaintiffs' Third Cause of Action for False Advertising be dismissed without prejudice;
2. Plaintiffs' Fourth Cause of Action for Breach of Written Warranty under the Magnuson-Moss Warranty Act be dismissed without prejudice;
3. Plaintiffs' Fifth Cause of Action for Brach of Implied Warranty under the Magnuson-Moss Warranty Act be dismissed without prejudice;
4. Plaintiffs' Sixth Cause of Action for Fraud by Intentional Misrepresentation and Concealment be dismissed without prejudice;
5. Plaintiffs' Seventh Cause of Action for Constructive Fraud ("Tort in Essence") be dismissed without prejudice; and
6. The above-captioned action be remanded to the Sacramento County Superior Court.
Parties are free to stipulate to remand an action. Truck Ins. Exch. v. Atl. Mut. Ins. Co., 2007 U.S. Dist. LEXIS 55116 (N.D. Cal. July 20, 2007). Under Federal Rules of Civil Procedure Rule 15(a)(2), plaintiffs may amend their pleading with opposing party's written consent, which plaintiffs have here with this stipulation. Therefore, plaintiffs are free to amend their Complaint to dismiss certain causes of action.
IT IS SO ORDERED.
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