United States District Court, S.D. California
William Q. Hayes United States District Court
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
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.
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).
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).
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).
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).
MOTION FOR VOLUNTARY DISMISSAL BY 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.
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.
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, ...