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Bernacki v. Tanimura & Antle Fresh Foods, Inc.

United States District Court, N.D. California, San Jose Division

July 3, 2014

ORVILLE BERNACKI, individually, and as personal representative of the Estate of GAIL BERNACKI, deceased, Plaintiff,


EDWARD J. DAVILA, District Judge.

Presently before the Court is Plaintiff's Motion for Voluntary Dismissal of his Complaint (Docket Item No. 1). Docket Item No. 16. Per Civil Local Rule 7-1(b), the court has determined this motion is suitable for decision without oral argument. Accordingly, the hearing scheduled for July 11, 2014, will be vacated.

Having considered the background, parties' submissions, and the relevant law, for the reasons set forth below, the court GRANTS Plaintiff's request for dismissal of all claims, with prejudice and with the parties to bear their own costs.


Tanimura & Antle Fresh Foods, Inc. ("Defendant") sells various lettuce products throughout the United States and internationally, including to Canada. Dkt. No. 1 ¶ 3. In August 2012, the Canadian Food Inspection Agency isolated E. coli O157:H7 in a sample of Defendant's lettuce. Id . ¶ 11.

Orville Bernacki ("Plaintiff") is the husband of the late Gail Bernacki ("the decedent"). Id . ¶ 1. Plaintiff asserts that in late August 2012, the decedent consumed a Tanimura & Antle lettuce product contaminated with E. Coli O157:H7. Id . ¶ 12. On August 25, 2012, the decedent tested positive for E.Coli O157:H7. Id . ¶ 14. The strain[1] isolated in Defendant's lettuce was the same as that which infected the decedent. Id . On January 16, 2013, the decedent passed away. Id . ¶ 17. Plaintiff asserts the E. coli infection accelerated her death. Id . ¶ 18.

On May 9, 2013, Plaintiff filed suit against Defendant on behalf of himself and the decedent's Estate. Dkt. No. 1. The complaint alleges the following claims: (1) strict liability in the sale of a lettuce food product containing E. coli O157:H7, and thus not fit for human consumption, Id . ¶¶ 19-24, (2) breach of express and implied warranties of merchantability regarding the lettuce product, Id . ¶¶ 25-28, (3) negligence in distributing lettuce contaminated with E. coli O157:H7, Id . ¶¶ 29-33, and (4) negligence per se in violating the food safety standards of the Federal Food, Drug and Cosmetics Act, [2] and the California adulterated food statutes, Id . ¶¶ 34-36. In each of these counts, Plaintiff alleges that as a direct and proximate result, Plaintiff sustained injuries and damages. Id . ¶¶ 24, 28, 33, 36.

On June 11, 2013, Defendant filed an answer to the complaint. Docket Item No. 5. Defendant does not assert any counterclaims. See Id.

On February 14, 2014, Plaintiff filed a motion to dismiss. Dkt. No. 16. In the motion, Plaintiff requested the court dismiss all claims, without an award of costs to either party. Id . ¶ 11. Plaintiff, who is eighty years old, stated the reason for the motion was due to his distant residence in Alberta, Canada and the negative impact the litigation has had on his mental and physical health. Id . ¶¶ 6-7. Plaintiff had previously requested that Defendant stipulate to dismissal of the claims with no award of costs. Id . ¶ 8. Defendant declined to sign the stipulation because Defendant was "not willing to waive its right to recover costs". Aff. of William Marler ("Marler Aff.") Ex. 1, Dkt No. 16. Thus, Plaintiff filed the motion to dismiss requesting the court dismiss all claims without an award of costs to either party. Dkt. No. 16 ¶ 11.

Defendant filed a partial opposition to Plaintiff's motion on February 27, 2013. Docket Item No. 17. Defendant requested that the court grant Plaintiff's request to dismiss the claims, but not limit Defendant's option to recover costs. Id. at 3:10-11.


Under Federal Rule of Civil Procedure 41(a)(2), a court may dismiss an action by plaintiff's request "on terms the court considers proper". Fed.R.Civ.P. 41(a)(2). The primary reason for allowing the court to attach conditions to its grant of a motion for voluntary dismissal is to avoid prejudice to the defendant. Hamilton v. Firestone Tire & Rubber Co., Inc. , 679 F.2d 143, 146 (9th Cir. 1982). Once dismissed, a court may not adjudicate the action on its merits, but maintains jurisdiction over collateral matters. Bldg. Innovation Indus., L.L.C. v. Onken , 473 F.Supp.2d 978, 983 (D. Ariz. 2007). Determinations regarding cost allocations are considered collateral, and thus may be considered and adjudicated after the original suit is dismissed. See Cooter & Gell v. Hartmax Corp. , 496 U.S. 384, 396 (1990).

Federal Rule of Civil Procedure 54(d)(1) states that costs should be allowed to the prevailing party unless a court order provides otherwise. Fed.R.Civ.P. 54(d)(1). In a plaintiff's voluntary dismissal under Rule 41(a), the defendant is deemed a "prevailing party". Zenith Ins. Co. v. Breslaw , 108 F.3d 205, 207 (9th Cir. 1997) abrogated on other grounds by Ass'n of Mexican-Am. Educators v. California , 231 F.3d 572 (9th Cir. 2000). Thus, unless the court orders otherwise, the defendant may recover costs under Rule 54(d)(1). If the court decides to deny ...

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