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Punay v. PNC Mortgage

United States District Court, S.D. California

May 7, 2018

JOSEFINA PUNAY, Plaintiff,
v.
PNC MORTGAGE; CLEAR RECON CORP; and DOES 1-50, inclusive, Defendant.

          ORDER

          Hon. William Q. Hayes United States District Court

         The matter before the Court is the motion for voluntary dismissal filed by Plaintiff Josefina Punay (ECF No. 20) and the motion for summary judgment filed by Defendant PNC Mortgage. (ECF No. 23).

         I. BACKGROUND

         On August 16, 2016 Plaintiff Josefina Punay filed a complaint in San Diego County Superior Court against Defendants PNC Mortgage (“PNC”), Clear Recon Corp, and Does 1-10. (ECF No. 1 at 5). The complaint alleges six causes of action: (1) violation of California Civil Code section 2923.6, (2) promissory estoppel, (3) negligent misrepresentation, (4) violation of California Civil Code section 2924.10, (5) violation of California Civil Code section 2923.7, and (6) violation of California Business and Professions Code section 17200. Id. On November 10, 2016, PNC filed a notice of removal to this Court pursuant to 28 U.S.C. § 1441(b). PNC stated that this Court properly has jurisdiction on diversity grounds under 28 U.S.C. § 1332. Id. at 1-2.

         On May 31, 2017, the Court issued an Order granting in part and denying in part a motion to dismiss filed by Defendant PNC. The Order stated, “Punay's causes of action against Defendant PNC for the violation of California Civil Code section 2923.6, promissory estoppel, negligent misrepresentation, and the violation of Business and Professions Code § 17200 are dismissed without prejudice. The motion to dismiss is denied in all other respects.” (ECF No. 10 at 19).

         Defendant Clear Recon Corp has not appeared in this action in this Court. The docket reflects that no proof of service has been filed as to this Defendant in this Court. The Notice of Removal filed by Defendant PNC states, “Co-defendant Clear Recon Corp. was served with the Complaint on August 19, 2016. On September 16, 2016, co-defendant Clear Recon Corp. filed as Declaration of Non-Monetary Status pursuant to California Civil Code § 29241.” (ECF No. 1 at 2).

         On February 28, 2018, Plaintiff filed a motion for voluntary dismissal. (ECF No. 20). On March 7, 2018, Defendant PNC filed a response in opposition. (ECF No. 22). On April 4, 2018, Plaintiff filed a reply. (ECF No. 24).

         On March 27, 2018, Defendant PNC filed a motion for summary judgment. (ECF No. 23). On April 16, 2018, Plaintiff filed a response in opposition. (ECF No. 25). On April 17, 2018, Defendant PNC filed a reply and evidentiary objections to Plaintiff's response. (ECF Nos. 26, 27).

         II. MOTION FOR VOLUNTARY DISMISSAL BY PLAINTIFF

         A. Contentions

         Plaintiff moves for voluntary dismissal of this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). (ECF No. 20). Plaintiff contends that PNC “has made no showing of how any legal interest, claim, or argument would be prejudiced” by the Court granting the motion for voluntary dismissal without prejudice. (ECF No. 24 at 6). Plaintiff contends that voluntary dismissal is appropriate because neither party wants to continue litigating this action. Plaintiff “requests that all parties bear responsibility for their own attorney's fees incurred in the course of litigating this action” and states that she “reserves the right to withdraw the instant motion if the conditions imposed under any Order of Dismissal issued by the Court substantially deviate from those enumerated by Plaintiff.” (ECF No. 20 at 7). Plaintiff asserts that the California Civil Code provides a plaintiff with the absolute right to dismiss a complaint without prejudice any time before trial and that she “did not anticipate the removal of this case to federal court nor did she expect to pay attorney's fees if and when a voluntary dismissal was needed.” (ECF No. 24 at 7). Plaintiff asserts that “due to the nature of this action a review of the Plaintiff's loan modification application may rectify and make obsolete the claims of Plaintiff, as it has in the instant case.” Id.

         Defendant PNC contends that the dismissal of this action should be with prejudice “in light of the Plaintiff's lack of diligence in prosecuting this action.” (ECF No. 22 at 2). Defendant PNC contends that it has incurred attorney's fees and costs of $25, 702.61 in litigating this case. Defendant PNC contends that Plaintiff has not served any written discovery or taken any depositions in this case. Defendant PNC contends that Plaintiff fails to establish that dismissal of the action is necessary. In the alternative, Defendant PNC requests dismissal without prejudice on the following conditions: (1) Plaintiff pay Defendant PNC $25, 702.61 for costs and fees incurred within 30 days of the Court order dismissing this case without prejudice; (2) “should the Plaintiff's [sic] refile any subsequent action against PNC on the exact same claims that the discovery responses and deposition testimony obtained may be used in the subsequent case”; (3) “any subsequent action against PNC on the exact same claims be filed in the United States District Court for the Central District of California”; and (4) “Plaintiff be barred from conducting any discovery in any subsequent action against PNC on the exact same claims.” Id. at 4-5.

         B. Legal Standard

         Under Rule 41(a)(2), “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 is without prejudice unless the order states otherwise. Id. “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) (internal citation omitted) (citing Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987); McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856 (11th Cir. 1986); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, ...


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