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Vladimir Shevchenko, et al. v. andreas Siemens

February 5, 2013


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


In this action, one plaintiff seeks voluntary dismissal of this case without prejudice, and the other plaintiff has not participated in the litigation, has not complied with court orders, and has been silent in regards to dismissing this action.*fn1 The defendant urges that the entire action be dismissed with prejudice. For the reasons described below, the undersigned dismisses this action without prejudice as to plaintiff Vladimir Shevchenko pursuant to Federal Rule of Civil Procedure 41(a)(2), with prejudice as to plaintiff Vladimir Demin pursuant to Federal Rule of Civil Procedure 41(b), and directs the Clerk of the Court to close this case and vacate all future dates.


The undersigned previously granted attorney Alla V. Vorobets' motion to withdraw as counsel for plaintiffs GN Trade, Inc. ("GN Trade"), Vladimir Demin ("Mr. Demin"), and Vladimir Shevchenko ("Mr. Shevchenko"). (Order and Order to Show Cause ("OSC"), Aug. 10, 2012, Dkt. No. 49.) GN Trade has since been dismissed from this action. (Order, Dkt. No. 51.)

On January 9, 2013, Mr. Shevchenko, one of the two remaining plaintiffs in this case, filed a document entitled "Notice Of Dismissal By Plaintiff [FRCP Rule 41(a)]," which purported to voluntarily dismiss Mr. Shevchenko from this action without prejudice. (Dkt. No.

57.) The filing came just a few days before the deadline by which discovery motions had to be heard in this case. (See Order, Dkt. No. 53 (amending Scheduling Order and stating discovery motion hearing deadline of January 24, 2013).) As the undersigned noted in his order of January 16, 2013, it is not clear whether the Notice of Dismissal (Dkt. No. 57) was intended to effectuate this entire case's dismissal or just Mr. Shevchenko's individual dismissal, given that Mr. Shevchenko's "Notice of Dismissal" is silent with respect to the other plaintiff in this case, Mr. Demin. (Order, Jan. 16, 2013, Dkt. No. 58.) For the reasons described in the undersigned's order, the "Notice of Dismissal" was defective and did not effectuate dismissal of this case pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). (Id.) The undersigned ordered each individual plaintiff to file a status report and ordered defendant to file briefing regarding plaintiff's request for dismissal by January 30, 2013. (Id.)

Plaintiff Shevchenko timely filed a status report confirming his wish to have this matter dismissed and also confirming that he has had no recent contact with plaintiff Demin. (Dkt. No. 59.) Mr. Shevchenko believes Mr. Demin has no intention to prosecute this case. (Id.) Defendants timely filed an Opposition to plaintiff's motion for voluntary dismissal without prejudice, urging that this entire action be dismissed with prejudice. (Opp'n, Dkt. No. 60.) Plaintiff Demin did not file a status report despite the undersigned's order requiring him to do so.

(Dkt. No. 58.)


A. Voluntary Dismissal Of Plaintiff Shevchenko By Court Order Pursuant To Federal Rule of Civil Procedure 41(a)(2)

Federal Rule of Civil Procedure 41(a) provides that a plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). Here, as discussed in the undersigned's order of January 16, 2013, plaintiff filed his notice of dismissal after defendant had already filed an answer, and plaintiff filed no stipulation of dismissal signed by all appearing parties. (Answer, Dkt. No. 8.) Accordingly, plaintiff cannot be voluntarily dismissed pursuant to the text of Rule 41(a)(1)(A). However, the undersigned construes plaintiff's filing (Dkt. No. 57) as a request for voluntary dismissal by court order pursuant to Rule 41(a)(2), and grants the motion.

Defendant argues that plaintiff Shevchenko's request for voluntary dismissal should be granted, but that the dismissal should be "with prejudice." (Opp'n at 3.) Defendant quotes Federal Rule of Civil Procedure 41(a)(1)(B) in support of this argument, arguing that because plaintiff Shevchenko already dismissed a substantially similar state court action against defendant, dismissal of this second federal action must be with prejudice and "on the merits." (Id. ("if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.") (quoting Fed. R. Civ. P. 41(a)(1)(B)).) This is often referred to as the "two dismissal" rule. Commercial Space Management Co. v. Boeing Co., 193 F.3d 1074, 1075 (9th Cir. 1999). Aside from this "two dismissal" argument, defendant offered no other authorities or factual arguments in support of dismissing Mr. Shevchenko from this case with prejudice. As described below, defendant's argument is not well-taken.

Defendant's focus on Rule 41(a)(1)(B) is misplaced. Although plaintiff Shevchenko may have sought to dismiss his claims under Rule 41(a)(1)(A) "without prejudice," Mr. Shevchenko cannot be dismissed pursuant to Rule 41(a)(1)(A) because he did not obtain a stipulation signed by all parties and because he did not seek dismissal before defendant filed an answer. Therefore, Mr. Shevchenko's voluntary dismissal from this action is not pursuant "notice or stipulation" under Rule 41(a)(1)(B) - it is a voluntary dismissal "by court order" under Rule 41(a)(2). Because Rule 41(a)(1)(B) pertains only to dismissals pursuant to Rule 41(a)(1), it is inapposite here.*fn2

Aside from defendant's "two dismissal" argument pursuant to Rule 41(a)(1)(B) and rejected above, defendant has not provided the court with any other reasons, let alone reasons that the "court considers proper," for the terms of the requested voluntary dismissal to be "with prejudice." Fed. R. Civ. P. 41(a)(2). While the undersigned is somewhat troubled by plaintiff Shevchenko's rather late efforts to extricate himself from this case on the eve of the discovery cutoff, and while the undersigned would have considered this timing and any other facts relevant to potential unfairness to the defendant, defendant neither raised the timing of plaintiff's request nor any other equitable arguments in urging that Mr. Shevchenko's dismissal should be with prejudice. ...

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