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United Rentals (North America) Inc v. Cutting Edge Grading

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division

January 23, 2013


The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge


On June 25, 2012, Plaintiff United Rentals (North America) Inc. ("United Rentals") sued eight 19 defendants-Cutting Edge Grading, Inc. ("Cutting Edge"), RQ Construction, Inc. ("RQ 20 Construction"), Western Surety Company ("Western Surety"), Liberty Mutual Insurance Company 21 ("Liberty Mutual"), KISAQ-RQ 2 JV ("KISAQ-RQ"), KISAQ, LLC ("KISAQ"), Federal Insurance 22 Company ("FIC"), and First National Insurance Company of America ("First National") 23 (collectively, "Defendants") for breach of contract and other related claims. See Complaint, ECF 24 No. 1. 25 On October 18, 2012, United Rentals and five Defendants (KISAQ, KISAQ-RQ, RQ 26 Construction, Western Surety, and FIC) filed a joint case management statement. CMC Statement, 27 ECF No. 18. In it, United Rentals represented that it has served all Defendants except Cutting Edge 28 (i.e., that it had served seven of eight Defendants). Id. at 2. It also requested an additional 60 days

1 to serve Cutting Edge because it had not been able to locate Cutting Edge and "ha[d] ordered a skip 2 trace" to try and find it. Id. At the time the joint case management conference statement was filed, 3 the record indicated that three Defendants were served and had appeared and answered (RQ 4 Construction, Western Surety, and KISAQ), two of the them were served but had not appeared or 5 answered (Liberty Mutual and First National), two may or may not have been served but 6 nevertheless had appeared and answered (KISAQ-RQ and FIC), and one had not been served and 7 had not appeared or answered (Cutting Edge). 8 In response to the joint case management conference statement, on October 18, 2012, the court 9 ordered that the initial case management conference, which had been scheduled for October 25, 10 2012, be continued until January 24, 2013, and a joint case management conference statement be 11 filed no later than January 17, 2013. Joint CMC Statement, ECF No. 19. The court also ordered 12 United Rentals tofile, no later than October 29, 2012, (1) proofs of service (or waivers of service)

for KISAQ-RQ, and FIC, and (2) a status report discussing what it intends to do about Liberty

14 Mutual and First National. 15 United Rentals filed nothing by the court's deadline and did not comply with the court's October D 16 18, 2012 Order. Finally, on November 19, 2012, United Rentals attempted to voluntarily dismiss

five of the Defendants (RQ Construction, Western Surety, KISAQ-RQ, KISAQ, and FIC). Notices S

18 of Voluntary Dismissals, ECF Nos. 21, 23-26. The same day, United Rentals also filed a Notice of 19 Voluntary Dismissal With Prejudice of its third claim for relief (brought against Cutting Edge, RQ

20 Construction, KISAQ, KISAQ-RQ, FIC, and Western Surety). Voluntary Dismissal of Third Claim, 21 ECF No. 22; see Complaint, ECF No. 1 at 7. 22 There is still nothing in the record indicating that Cutting Edge was served, and it has not 23 appeared or answered. See generally Docket. First National was served but it still has not appeared 24 or answered. See generally id. 25 On January 22, 2013, United Rentals filed an individual case management statement. United 26 Rentals's CMC Statement, ECF No. 27. In it, United Rental says that Cutting Edge has not been 27 served because Cutting Edge filed for bankruptcy protection, and that First National has been served 28 but has not answered. Id. at 2. It also states that it Liberty Mutual has been dismissed. Id. United

1 Rental requests that the court continue proceedings to allow for Cutting Edge's bankruptcy 2 proceeding to be resolved. Id. at 4, 5. It also asks to be allowed to appear at the January 24, 2013 3 Initial Case Management Conference by telephone. Id. at 1. 4 ANALYSIS 5 I. UNITED RENTALS MUST PROPERLY DISMISS RQ CONSTRUCTION, WESTERN 6 SURETY, KISAQ-RQ, KISAQ, AND FIC 7 Federal Rule of Civil Procedure 41(a)(1)(A) provides that, subject to certain restrictions, a 8 "plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the 9 opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of 10 dismissal signed by all parties who have appeared." This rule is clear and unambiguous. United 11 Rentals did not follow it. United Rentals filed voluntary dismissals, signed only by United Rentals's 12 counsel, of RQ Construction, Western Surety, KISAQ-RQ, KISAQ, and FIC. These entities all filed

For the Northern District of California

14 Surety), ECF No. 15; Answer (KISAQ-RQ, KISAQ, and FIC), ECF No. 16. United Rental's 15 voluntary dismissals, then, are not sufficient to dismiss them. Instead, United Rentals must file a D 16 stipulation of dismissal that is signed by all parties who have appeared.

COURT 13 and served answers to United Rentals's complaint, though. Answer (RQ Construction and Western C


18 RULE 41 19 Rule 41, on its face, does not allow for dismissal of individual claims against a defendant. And

20 in Hells Canyon Preservation Council v. U.S. Forest Service, the Ninth Circuit stated that Federal 21 Rule of Civil Procedure 41(a)(1) allows for dismissal of all claims against one defendant, not 22 dismissal of individual claims against one defendant. 403 F.3d 683, 687 (9th Cir. 2005); see also 23 Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988). Instead, "Federal Rule 24 of Civil Procedure 15(a) is the appropriate mechanism [w]here a plaintiff desires to eliminate an 25 issue, or one or more but less than all of several claims, but without dismissing as to any of the 26 defendants." Hells Canyon, 403 F.3d at 688. Accordingly, United Rentals's purported dismissal of 27 its third claim is invalid. See McCoy v. Alameda County, No. C 11-01569 WHA, ECF No. 30 (N.D. 28 Cal. Nov. 18, 2011). United Rentals instead should file a motion for leave to amend the complaint

1 under Rule 15(a). See id. 2 III. LIBERTY MUTUAL HAS NOT BEEN DISMISSED 3 For the reasons discussed above, United Rentals's statement in its January 22, 2013 case 4 management conference statement that Liberty Mutual has been dismissed does not suffice as a 5 dismissal. Because Liberty Mutual has not filed and served an answer or motion for summary 6 judgment, United Rentals may dismiss it with a notice of voluntary dismissal under Rule 7 41(a)(1)(A)(i), but it may not do so merely by saying that Liberty Mutual has been dismissed in a 8 case management conference statement. 9 IV. UNITED RENTALS'S TIME FOR SERVING CUTTING EDGE IS EXTENDED AND 10 THE INITIAL CASE MANAGEMENT CONFERENCE IS CONTINUED TO ALLOW FOR 11 CUTTING EDGE'S BANKRUPTCY PROCEEDINGS TO FINISH 12 United Rentals apparently anticipates filing a request for entry of default and a motion for

13 default judgment against First National, but United Rentals says that "this will necessarily require

14 additional documentation from Cutting Edge, and thus [United Rentals's request for entry of default 15 and motion for default judgment are] dependent on [Cutting Edge's] bankruptcy petition." United

Rentals's CMC Statement, ECF No. 27 at 3. 17 Under these circumstances, the court GRANTS United Rentals additional time to serve Cutting

18 Edge: it may do so after Cutting Edge's bankruptcy proceeding is resolved. In addition, the court 19 CONTINUES the January 24, 2013 Initial Case Management Conference to May 2, 2013 at 10:30

20 a.m. in Courtroom C, 15th Floor, United States District Court, 450 Golden Gate Avenue, San 21 Francisco, California, 94102. The remaining, live parties shall file a joint case management 22 conference statement no later than April 25, 2013. United Rental's request to appear by telephone 23 at the January 24, 2013 Initial Case Management Conference is DENIED AS MOOT. 24 IT IS SO ORDERED. 25


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