The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DISMISSING DEFENDANTS KENWORTH TRUCK COMPANY, KALYPSO, INC., PARAMETRIC TECHNOLOGY CORPORATION, ANDREW TIMM, AND JORDAN REYNOLDS; ORDER SETTING CASE MANAGEMENT CONFERENCE FOR REMAINING PARTIES
Plaintiff Advanced Engineering Solution, Inc. ("Plaintiff") filed a complaint against Paccar, Inc. ("Paccar"); Kenworth Truck Company ("Kenworth Truck"); Kalypso Inc. ("Kalypso"), 22 Parametric Technology Corporation ("Parametric Technology"); Andrew Timm ("Timm"); Jordan 23 Reynolds ("Reynolds"); and Does 1 through 100, inclusive (collectively, "Defendants"), on 24 February 27, 2012, asserting ten causes of action. See ECF No. 1 ("Complaint"). On March 27, 25 2012, Paccar filed an Answer and Counterclaims. ECF No. 11. Plaintiff filed an Answer to 26 Paccar's Counterclaims on April 17, 2012. ECF No. 20. On May 11, 2012, Defendant Timm filed 27 a motion to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) 28 and 12(b)(6), to which Plaintiff failed to respond. See ECF No. 28. Accordingly, on July 23, 2012, the Court issued an Order to Show Cause Why this Case Should Not Be Dismissed For Failure to 2 Prosecute. See ECF No. 33 ("OSC"). The Court ordered Plaintiff to respond by August 13, 2012, 3 and to appear at an OSC hearing on August 30, 2012. 4
In response to the OSC, Plaintiff explains that it continues to suffer
financial hardship and
5 has been unable to find new counsel since The Williams Law Firm
withdrew as Plaintiff's counsel 6 on April 26, 2012.*fn1
See ECF Nos. 21, 24. In light of Plaintiff's financial
hardship, Plaintiff 7 requests: (1) dismissal of this case without
prejudice due to financial inability to pursue litigation; 8 or,
alternatively, (2) transfer of this case to the United States District
Court, Western Division of 9
Texas, Austin Division ("Texas Court"), where Plaintiff is the
defendant in a case Plaintiff alleges 10 is related to the instant
suit; or, alternatively, (3) that the Court allow Plaintiff 60
additional days to 11
for dismissal without prejudice pursuant to Federal Rule of Civil
Procedure 41(a), the Court 13 provided Defendants an opportunity to
respond. Defendants Timm, Parametric Technology, and 14
Paccar filed oppositions to Plaintiff's request for dismissal without
prejudice, transfer, or an 15 extension of time. See ECF No. 38 ("Timm
Opp'n"); ECF No. 40 ("Parametric Technology 16
Opp'n"); ECF No. 41 ("Paccar Opp'n"). The Court held an OSC hearing on
August 30, 2012, at 17 which Plaintiff, Timm, Parametric Technology,
and Paccar appeared. 18
20 a court order by filing "a notice of dismissal before the opposing
party serves either an answer or a 21 motion for summary judgment."
Fed. R. Civ. P. 41(a)(1)(A)(i). "Unless the notice . . . states 22
otherwise, the dismissal is without prejudice." Fed. R. Civ. P.
41(a)(1)(B). "Under Rule 41(a)(1), 23 a plaintiff has an absolute
right to voluntarily dismiss his action prior to service by the
defendant of 24 an answer or a motion for summary judgment. . . . The
dismissal is effective on filing and no court 25 order is required."
Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)
(internal citations 26 omitted); accord United States v. Real Property
Located at 475 Marin Lane, Beverly Hills, CA, 27
seek and obtain representation. See ECF No. 36 ("Response") at 2. In
light of Plaintiff's motion
I.Rule 41(a)(1)(A)(i) Dismissal
Pursuant to Federal Rule of Civil Procedure 41(a), a plaintiff may dismiss an action without 545 F.3d 1134, 1145 (9th Cir. 2008). Moreover, a plaintiff need not dismiss the entire action 2 pursuant to Rule 41(a)(1); rather, "[t]he plaintiff may dismiss some or all of the defendants, or 3 some or all of his claims, through a Rule 41(a)(1) notice." Wilson, 111 F.3d at 692 (internal 4 citations omitted). A Rule 41(a)(1)(A)(i) dismissal does not require a particular form of a notice of 5 dismissal, so long as the intent to dismiss is clear. Goudlock v. Thompson, Civil No. 08cv00204 6 1261, 1263 (5th Cir. 1976) (holding that plaintiff's failure to cite Rule 41(a)(1) in its "motion for 8 dismissal" was of no consequence where plaintiff's intent to dismiss was apparent).
summary judgment, and therefore Plaintiff may dismiss its claims against them without prejudice BEN (RBB), 2011 WL 1167545, at *6 (S.D. Cal. Jan. 28, 2011) (citing Williams v. Ezell, 531 F.2d 7 Here, neither Timm nor Parametric Technology has yet served an answer or a motion for pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Likewise, Plaintiff has not yet even filed proof of service of the Summons and Complaint on Defendants Kenworth Truck, Kalypso, 13 and Reynolds, and thus none of those Defendants has yet filed an answer or a motion for summary 14 judgment either.*fn2 Accordingly, the Court construes Plaintiff's request for dismissal as a notice of 15 dismissal pursuant to Rule 41(a)(1)(A)(i) with respect to Timm, Parametric Technology, Kenworth 16
Truck, Kalypso, and Reynolds. Although Timm had filed a motion to dismiss, the Ninth Circuit 17 has held that a pending motion to dismiss is not the equivalent of a motion for summary judgment 18 for purposes of Rule 41(a)(1)(A)(i). See Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970). 19
The mere fact that Paccar, another co-Defendant, had served an answer prior to Plaintiff's request 20 for dismissal does not vitiate Plaintiff's "absolute right to voluntarily dismiss . . . some or all of the 21 defendants" so long as the Defendants whom Plaintiff seeks to dismiss have not yet served an 22 answer or motion for summary judgment. Wilson, 111 F.3d at 692. Accordingly, Plaintiffs' claims 23 against Timm, Parametric Technology, Kenworth Truck, Kalypso, and Reynolds are DISMISSED 24
2 costs and fees in the event of a dismissal without prejudice, the Court may impose costs and fees 3 upon a plaintiff as a condition of voluntary dismissal only pursuant to Federal Rule of Civil 4
Furthermore, although Timm and Parametric Technology insist that they should be awarded Procedure 41(a)(2), not Rule 41(a)(1)(A)(i). Rule 41(a)(2) applies to a voluntary dismissal only if 5 a defendant files an answer or a motion for summary judgment before the plaintiff seeks to 6 voluntarily dismiss the action. As previously discussed, neither Timm nor Parametric Technology 7 has filed an answer or a motion for summary judgment, and therefore Rule 41(a)(2) does not apply 8 to them. Accordingly, Timm and Parametric Technology cannot seek attorneys' fees and costs 9 under Rule 41(a)(2), and their request for fees and costs is DENIED.
Unlike the other Defendants, Paccar has filed an answer and has asserted counterclaims against Plaintiff, and therefore Plaintiff cannot dismiss this action against Paccar without prejudice 13 absent a court order. Wilson, 111 F.3d at 692 ("Once the defendant serves an answer or a motion 14 for summary judgment, however, the plaintiff may no longer voluntarily dismiss under Rule 15 Civil Procedure 41(a)(2) provides that when a notice of dismissal may no longer be filed and not 17 all parties will stipulate to dismissal, "an action may be dismissed at the plaintiff's request only by 18 court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). Here, Plaintiff 19 requests dismissal without prejudice pursuant to Rule 41(a)(2), but Plaintiff makes clear that its 20 request for dismissal without prejudice is contingent upon dismissal of Paccar's counterclaims as 21 well. See Response at 3 ("Nothing by way of this request is intended to seek a dismissal of 22 41(a)(2), however, "[i]f a defendant has pleaded a counterclaim before being served with the 24 plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the 25 counterclaim can remain pending for independent adjudication." ...