United States District Court, S.D. California
ORDER GRANTING PLAINTIFF RICH'S MOTION TO DISMISS
[Dkt. No. 149.]
GONZALO P. CURIEL United States District Judge
the Court is Plaintiff Cynthia Rich's motion to dismiss
pursuant to Federal Rule of Civil Procedure 41(a)(2). (Dkt.
No. 149.) Defendant Myron Lange, proceeding pro se, has not
filed an opposition. Having reviewed the moving papers, and
the applicable law, the Court GRANTS Plaintiff's motion
November 19, 2014, Plaintiffs Erika Macias
(“Macias”) and Cynthia Rich (“Rich”)
filed a complaint against Defendant Myron Lange
(“Defendant”) for violations of the Fair Housing
Act (“FHA”); California Fair Employment and
Housing Act (“FEHA”); California Civil Code
section 51.9; California Ralph Act; California Unruh Civil
Rights Act (“Unruh Act”); breach of the covenant
of quiet use and enjoyment; and invasion of privacy. (Dkt.
No. 1, Compl.) Plaintiffs allege Defendant sexually harassed
them when they were tenants of Defendant's residential
rental properties. Plaintiff Rich remains a current tenant of
Defendant. On February 6, 2015, Defendant, with counsel,
filed an answer. (Dkt. No. 7.)
April 1, 2016, the Court denied Defendant's motion for
summary judgment on all causes of action as to Macias. (Dkt.
No. 63.) The Court also granted in part and denied in part
Defendant's motion for summary judgment as to Rich.
(Id.) Specifically, as to Rich, the Court granted
Defendant's motion on the FHA, FEHA, Civil Code section
51.9, Ralph Act, and invasion of privacy causes of action and
denied Defendant's motion on the Unruh Act and the breach
of the covenant of quiet use and enjoyment causes of action.
(Id.) On May 16, 2016, defense counsel filed an
ex parte motion to withdraw as counsel. (Dkt. No.
89.) On June 6, 2016, the Court granted defense counsel's
motion to withdraw after the pretrial disclosures and
pretrial order were submitted. (Dkt. No. 93.)
October 14, 2016, the Court severed Plaintiffs. A jury trial
on Macias' claims was held on October 17-18, 2016. (Dkt.
Nos. 122, 123.) The jury found in favor of Defendant on the
Unruh Act, quid pro quo sexual harassment, and the Ralph Act,
and found in favor of Plaintiff Macias on the hostile housing
environment - sexual harassment and California Civil Code
section 51.9 claims and awarded Macias $55, 320.00. (Dkt. No.
Court then set a trial date on Rich's complaint for
February 27, 2017 which was later rescheduled to March 13,
2017. (Dkt. Nos. 130, 145.) The Court held a status
conference on March 3, 2017. (Dkt. No. 148.) At the hearing,
the parties disagreed as to the status of a pending
settlement agreement between the parties. Due to the parties
inability to resolve the disagreement, the Court confirmed
the jury trial set for March 13, 2017. (Dkt. No. 148.)
Plaintiff filed the instant motion to dismiss and also filed
an ex parte motion to continue the trial which was granted,
and reset to May 8, 2017. (Dkt. Nos. 150, 151.)
motion to dismiss, Plaintiff's counsel asserts that he
had spoken with Defendant on the telephone and discussed the
terms of a proposed settlement which Defendant agreed to.
(Dkt. No. 149-1, Butler Decl. ¶ 2.) Counsel then mailed
the proposed settlement agreement to Defendant; however,
since the telephone conversation, Defendant has failed to
respond to counsel's telephone messages and two followup
letters. (Id. ¶ 3.) At the status conference,
the Court directed the parties to review the proposed
settlement agreement but Defendant refused to speak to
Plaintiff's counsel and review the proposed settlement
agreement. (Id. ¶ 4.) Due to Defendant's
refusal to communicate with Plaintiff's counsel, Rich
filed the instant motion to dismiss.
Rule of Civil Procedure (“Rule”) 41(a)(2)
provides that “ . . . an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper. . . . Unless the order states
otherwise, a dismissal under this paragraph (2) is without
prejudice. Fed.R.Civ.P. 41(a)(2). The district court has
discretion in ruling on a Rule 41(a)(2) motion.
Stevedoring Servs. of America v. Armilla Int'l
B.V., 889 F.2d 919, 921 (9th Cir. 1989). Under this
section, “the district court must determine whether the
defendant will suffer some plain legal prejudice as a result
of the dismissal.” Westlands Water Dist. v.
U.S., 100 F.3d 94, 96 (9th Cir. 1996). The Ninth Circuit
defines legal prejudice as “prejudice to some legal
interest, some legal claim, some legal argument. Uncertainty
because a dispute remains unresolved is not legal
prejudice.” Id. at 97. On a Rule 41(a)(2)
dismissal, courts have considered whether a dismissal without
prejudice results in a loss of a federal forum, the right to
a jury trial or a statute of limitations defense.
Id. (citing American Nat'l Bank and Trust
Co. of Sapulpa v. Bic Crop., 931 F.2d 1411, 1412 (10th
Cir. 1991) (possibility that a plaintiff may gain a tactical
advantage by refiling in state court is not legal prejudice);
Templeton v. Nedlloyd Lines, 901 F.2d 1273, 1276
(5th Cir. 1990) (the prospect of losing a federal forum and
defending in state court is not sufficient legal prejudice);
Davis v. USX Corp., 819 F.2d 1270, 1275-76 (4th Cir.
1987) (loss of a valid statute of limitations defense not
Plaintiff Rich seeks to dismiss the entire action without
prejudice and with each party to bear its own costs and
attorneys' fees as to her claims and that in the event
Rich were to pursue her dismissed claims by re-filing them in
this or some other court, then Rich would be liable to pay
costs to Defendant in the amount of $500.00. (Dkt. No. 149 at
3-4.) Defendant, as a pro per, has not opposed or asserted
any legal prejudice to the requested dismissal. Based on the
declaration of Rich's counsel, and the parties'
positions at the status conference, both parties seek the
dismissal of Rich's claims. Moreover, each party will
bear his/her own costs and attorneys' fees and have a
deterrent in place in the event Rich seeks to refile her
claims. The Court concludes no legal prejudice will result
from the dismissal of Rich's claims. Thus, the Court
finds it appropriate to grant Plaintiffs motion to dismiss.
the Court GRANTS Plaintiff Rich's motion to dismiss
without prejudice under Rule 41(a)(2) and that each party
will bear his/her own costs and attorneys' fees as to
Rich's claims and that in the event Rich seeks to pursue
her dismissed claims by re-filing them in this or some other