Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Gene Palermo v. Underground Solutions

January 25, 2013

GENE PALERMO, PLAINTIFF,
v.
UNDERGROUND SOLUTIONS, INC., DEFENDANT.



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

ORDER

The matters before the Court are the Motion to Dismiss the Complaint filed by Defendant Underground Solutions, Inc. (ECF No. 12), the Motion to Strike filed by Defendant Underground Solutions, Inc. (ECF No. 24), and the Motion for Voluntary Dismissal filed by Plaintiff Gene Palermo. (ECF No. 29).

BACKGROUND

On May 21, 2012, Plaintiff Gene Palermo initiated this case by filing a Complaint against Defendant Underground Solutions, Inc. (ECF No.1). Plaintiff asserted six claims for relief: (1) false designation of origin and false association, in violation of the Lanham Act, 15 U.S.C. § 1125(a); (2) false light; (3) defamation; (4) misappropriation of likeness, in violation of California Civil Code § 3344; (5) misappropriation of likeness, in violation of California common law; and (6) unfair competition, in violation of California Business and Professions Code § 17200.

On May 21, 2012, Plaintiff filed a Motion for Preliminary and Permanent Injunctive Relief against Defendant (ECF No. 3), which the Court denied on August 1, 2012. (ECF No. 22 (finding that Plaintiff had failed to show a likelihood of success on the merits of his claims)).

On June 13, 2012, Defendant filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12). On July 2, 2012, Plaintiff filed an opposition. (ECF No. 19). On August 15, 2012, Defendant filed a reply. (ECF No. 26).

On August 7, 2012, the parties filed a Joint Motion to Dismiss claims two, three, five and six of the Complaint pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) (ECF No. 23), which the Court granted on August 9, 2012. (ECF No. 25).

On August 8, 2012, Defendant filed a Motion to Strike claim four of the Complaint pursuant to California's anti-SLAPP (strategic lawsuit against public participation) statute. (ECF No. 24 (citing Cal. Code Civ. P. § 425.16)). On August 24, 2012, Plaintiff filed an opposition (ECF No. 27), and on August 31, 2012, Defendant filed a reply. (ECF No. 28).

On October 19, 2012, Plaintiff filed a Motion for Voluntary Dismissal as to his remaining claims -- claims one and four -- pursuant to Federal Rule of Civil Procedure 41(a)(2). (ECF No. 29). On November 2, 2012, Defendant filed an opposition (ECF No. 31), and on November 9, 2012, Plaintiff filed a reply. (ECF No. 32).

MOTION FOR VOLUNTARY DISMISSAL

In his Motion for Voluntary Dismissal, Plaintiff seeks to "voluntarily dismiss the remaining counts in the Complaint, [claims one and four], without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2)," and with each party to bear its own attorneys' fees and costs pursuant to Local Rule 54.1(f). (ECF No. 29 at 2).

I. Applicable Standard

Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, "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). Dismissal pursuant to Rule 41(a)(2) is without prejudice unless the order dismissing the case states otherwise. Id. "Rule 41 vests the district court with discretion to dismiss an action at the plaintiff's instance upon such terms and conditions as the court deems proper." Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002). "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).

The inconvenience of defending another lawsuit or the fact that the defendant has already begun trial preparations does not constitute legal prejudice. See Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). "The defendants' interests can be protected by conditioning the dismissal without prejudice upon the payment of appropriate costs and attorney fees." Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996). A defendant is only entitled to recover "attorneys' fees or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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