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Angel Fraley, et al v. Facebook

March 13, 2012

ANGEL FRALEY, ET AL.,
PLAINTIFFS,
v.
FACEBOOK, INC, A CORPORATION; AND DOES 1-100, DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION TO DISMISS CLAIMS AND WITHDRAW CLASS REPRESENTATIVES (re: dkt. #86)

This is a putative class action brought by Plaintiffs Angel Fraley; Paul Wang; Susan Mainzer; J.H.D., a minor, by and through James Duval as Guardian ad Litem; and W.T., a minor, 19 by and through Russell Tait as Guardian ad Litem (collectively "Plaintiffs"), on behalf of 20 themselves and all others similarly situated, against Defendant Facebook, Inc. ("Defendant" or 21 "Facebook") for alleged violations of California's Right of Publicity Statute, Civil Code § 3344; 22 and California's Unfair Competition Law, Business and Professions Code § 17200, et seq. 23

("UCL"). Before the Court is Plaintiffs' motion to allow Angel Fraley and Paul Wang to dismiss 24 their claims against Facebook without prejudice and to withdraw as class representatives, pursuant 25 to Federal Rule of Civil Procedure 41(a)(2). See ECF No. 86 ("Mot."). On February 28, 2012, 26 Defendant submitted a Statement of Non-Opposition to Plaintiff's Motion, subject to Plaintiffs' 27 compliance with Magistrate Judge Paul S. Grewal's February 21, 2010 Order (ECF No. 93) 28 denying Plaintiffs' Motion for a Protective Order. See ECF No. 95 at 2 ("Non-Opp'n"). Pursuant 2 to Civil Local Rule 7-1(b), the Court finds this motion appropriate for determination without oral 3 argument, and hereby VACATES the May 31, 2012 motion hearing. For good cause shown, the 4 Court GRANTS Plaintiffs' motion. 5

I.BACKGROUND

This putative class action was first filed in Santa Clara County Superior Court on March 11, 2011, by Angel Fraley, Paul Wang, and Susan Mainzer as class representatives. See Mot. at 2; 8 Decl. of Steven Weinmann ("Weinmann Decl.") ¶ 5. J.H.D., a minor, by and through James 9 Duval, as Guardian ad Litem; and W.T., a minor, by and through Russell Tait, as Guardian ad 10 Litem, were added as class representatives in the First Amended Complaint, filed on March 18, 11 2011. Weinmann Decl. ¶ 5. In response to a motion to dismiss filed after Defendants removed this 12 action to federal court, Plaintiffs filed a Second Amended Complaint ("SAC") on June 6, 2011. On 13 December 16, 2011, the Court granted in part, and denied in part, Defendant's motion to dismiss 14 the SAC. See ECF No. 74. The SAC is brought on behalf of a putative Class, as well as a putative 15 Subclass of Minors, defined as follows: 16

All natural persons in the United States who had an account registered on facebook.com as of January 24, 2011, and had their names, photographs, likenesses or identities associated with that account used in a Facebook Sponsored Stories advertisement ("the Class").

Subclass of Minors.

All persons in the Plaintiff Class who additionally have had their names, photographs, likenesses or identities used in a Facebook Sponsored Stories ad while under 18 years of age ("the Minor Subclass").

Excluded from the Class are (a) FACEBOOK, its officers and directors, legal representatives, successors or assigns; (b) any entity in which FACEBOOK has or had a controlling interest; (c) the judge to whom this case is assigned and the judge's immediate family; (d) any juror selected to hear this case.

SAC ¶ 95. Plaintiffs' Motion for Class Certification is due March 29, 2012, and Defendant's 26 Opposition to the anticipated Motion for Class Certification will be due April 19, 2012. 27 28 2 and Paul Wang ("Wang") to dismiss their claims against Facebook without prejudice and without 3 assessment of costs, and to withdraw as class representatives, pursuant to Federal Rule of Civil 4 Procedure 41(a)(2). Wang wishes to withdraw as class representative because his work requires 5 him to travel frequently, making it difficult for him to fulfill certain litigation commitments. Decl. 6 of Paul Wang ("Wang Decl.") ¶ 6. Fraley wishes to withdraw as class representative based on 7 concerns regarding invasion of her privacy should she be subject to deposition.*fn1 Decl. of Angel 8 ("Mainzer"), J.H.D., and W.T. do not move to dismiss their claims and will remain class 10 representatives going forward. See Mot. at 6. 13 only by court order, on terms that the court considers proper. Fed. R. Civ. P. 41(a)(2). The 14 decision to grant a voluntary dismissal under Rule 41(a)(2) "is addressed to the sound discretion of 15 the District Court." Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 16 1982). "The purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so 17 long as the defendant will not be prejudiced or unfairly affected by dismissal." Stevedoring Servs. 18 of Am. v. Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989) (citations omitted). When 19 confronted with a motion for voluntary dismissal pursuant to Rule 41(a)(2), the Court must 20 determine: (1) whether to allow dismissal; (2) whether the dismissal should be with or without 21 prejudice; and (3) what terms and conditions, if any, should be imposed. Williams v. Peralta Cmty. 22

On February 14, 2012, Plaintiffs filed the instant motion to allow Angel Fraley ("Fraley")

Fraley ("Fraley Decl.") ¶¶ 6, 9 (submitted as Ex. 1 to Weinmann Decl.). Susan Mainzer 9

II.LEGAL STANDARD AND DISCUSSION

United States District Court For the Northern District of California

"Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request Coll. Dist., 227 F.R.D. 538, 539 (N.D. Cal. 2005)). 23

3 considers the effect of the dismissal on other parties to the litigation. See Columbia Cas. Co. v. 4 (Koh, J.); see also ITV Direct, Inc. v. Healthy Solutions, LLC, 445 F.3d 66, 70 (1st Cir. 2006) 6 (holding that on a motion for voluntary dismissal, a third-party intervenor's interests should be 7 considered); Cnty. of Santa Fe v. Pub. Serv. Co. of New Mexico, 311 F.3d 1031, 1049 (10th Cir. 8

A.Whether to Allow Dismissal

Because the requested dismissal here does not dispose of the entire case, the Court Gordon Trucking, Inc., No. 09-cv-05441-LHK, 2010 WL 4591977, at *3 (N.D. Cal. Nov. 4, 2010) 5

2002) ("[T]here will be circumstances where granting a plaintiff's motion to dismiss with prejudice 9 may adversely affect the defendant or, more likely, other parties to the litigation."). 10

The Ninth Circuit has held that a Rule 41(a)(2) motion for voluntary dismissal should be granted "unless a defendant can show that it will suffer some ...


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