United States District Court, S.D. California
RAFAEL DAVID SHERMAN and SUSAN PATHMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
YAHOO! Inc., Defendant.
ORDER REGARDING PLAINTIFFS' MOTION TO DISMISS PLAINTIFF RAFAEL DAVID SHERMAN'S CLAIMS WITHOUT PREJUDICE PURSUANT TO FED. R. CIV. P. 41(A)(2) [Dkt. No. 71.]
GONZALO P. CURIEL, District Judge.
Before the Court is a Motion to Dismiss Plaintiff Rafael David Sherman's claims without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2), filed by Plaintiffs Rafael David Sherman ("Sherman") and Susan Pathman ("Pathman") (collectively, "Plaintiffs"). (Dkt. No. 71.) The Parties have fully briefed the Motion. (Dkt. Nos. 90, 95.) The Court finds the Motion suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court intends to grant Plaintiffs' Motion, but condition Sherman's withdrawal on his deposition.
On January 8, 2013, Sherman filed this action against Yahoo! Inc. ("Yahoo"), individually and on behalf of those similarly situated, claiming that Yahoo violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A), by sending him an allegedly unsolicited text message on his cellular telephone through its messenger service. (Dkt. No. 1.) On February 3, 2014, this Court denied Yahoo's motion for summary judgment. (Dkt. No. 30.)
Sherman's deposition was originally scheduled for August 26, 2014, but was postponed until October 1, 2014, due to the personal circumstances of one of Sherman's attorneys. (Dkt. No. 54 ¶ 5; Dkt. No. 90-1 ¶ 3.)
On September 3, 2014, Plaintiffs' counsel advised Yahoo that they intended to amend the Complaint to add Pathman as a plaintiff, and on September 24, 2014, the Parties entered into a stipulation in which Yahoo agreed that Pathman could be added as a named plaintiff. (Dkt. No. 61; Dkt. No. 90-1 ¶ 4.)
On September 30, 2014, Pathman was added as a named plaintiff through the First Amended Complaint, which was the main change from the original Complaint. (Dkt. No. 64.) The "early deposition of Mr. Sherman and Ms. Pathman [on October 1 and 2, 2014] was a condition of Yahoo's agreement to stipulate to allow Plaintiff to file a First Amended Complaint in this action." (Dkt. No. 62 at 2.)
However, around the same time, on September 29, 2014, the Parties filed a joint motion to stay discovery, and take the depositions of Sherman and Pathman off-calendar, pending the outcome of a motion to consolidate this action with another action pending against Yahoo in Chicago, Illinois. (Dkt. No. 62.) On October 6, 2014, this Court granted the motion and stayed all discovery, including the depositions. (Dkt. No. 67.) On October 30, 2014, following the denial of the motion to consolidate, the Parties agreed that the depositions of Sherman and Pathman would take place on November 25 and 26, 2014. (Dkt. No. 90-1 ¶ 6.)
Four days later, on November 3, 2014, Sherman informed his attorneys that he no longer wanted to be a named plaintiff or serve as a potential class representative in this action "due to personal circumstances and time constraints." (Dkt. No. 71-8 ¶ 3; see also Dkt. No. 71-4 at ¶ 4.) That same day, Plaintiffs' counsel informed Yahoo's counsel that Sherman no longer wished to be a named plaintiff and asked to dismiss his individual claims without prejudice. (Dkt. No. 71-5 ¶ 4; Dkt. No. 90-1 ¶ 7.) The Parties could not agree to stipulate to the dismissal of Sherman's individual claims because Yahoo wanted to still depose Sherman, which Plaintiffs refused. (Dkt. No. 90-1 ¶ 7.) The Parties have stipulated that Sherman will not be deposed until this Court decides the instant Motion to Dismiss Sherman's claims. ( Id. )
On November 7, 2014, Plaintiffs filed the instant Motion to Dismiss Sherman's claims without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). (Dkt. No. 71.) On January 9, 2015, Yahoo opposed. (Dkt. No. 90.) On January 23, 2015, Plaintiffs replied. (Dkt. No. 95.)
Plaintiffs have not yet moved for class certification. The current deadline for discovery related to class certification is February 27, 2015, and Sherman's deposition is to take place no later than that date unless the Court has granted the instant Motion beforehand. (Dkt. No. 92.) The deadline for Plaintiffs to move for class certification is March 27, 2015. ( Id. )
Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, after an opposing party has served an answer or motion for summary judgment, "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). "The purpose of the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced, or unfairly affected by dismissal." Stevedoring Servs. of Am. v. Armilla Int'l, B.V., 889 F.2d 919, 921 (9th Cir. 1989). In resolving a motion under Rule 41(a)(2), the Court must make three separate determinations: (1) whether to allow dismissal; (2) whether the dismissal should be with or without prejudice; and (3) what terms and conditions, if any, should be imposed. See Fed.R.Civ.P. 41(a)(2); Williams v. Peralta Cnty. Coll. Dist., 227 F.R.D. 538, 539 (N.D. Cal. 2005).
Plaintiffs contend that this Court should allow Sherman to voluntarily dismiss his individual claims without prejudice. (Dkt. No. 71-1.) Yahoo counters that the Court should deny Plaintiffs' Motion, and alternatively that the Court should dismiss with prejudice and impose ...