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Busch v. United Parcel Service of America, Inc.

United States District Court, S.D. California

July 10, 2019

DENNIS BUSCH, Plaintiff,
v.
UNITED PARCEL SERVICE OF AMERICA, INC., et al., Defendants.

          ORDER: (1) GRANTING PLAINTIFF'S MOTION TO DISMISS DEFENDANT UPS [DOC. 12]; AND (2) GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION [DOC. 13]

          Hon. Thomas J. Whelan United States District Judge

         Defendant United Parcel Service of America, Inc. (“UPS”) removed this case from the Superior Court of California on March 1, 2019. (Notice of Removal [Doc. 1].) Plaintiff now moves to voluntarily dismiss UPS, and for reconsideration of the order denying his prior motion to remand the case to state court. (Mot. to Dismiss UPS [Doc. 12]; Mot. for Recon. [Doc. 13].) The Court decides the matters on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons that follow, both motions will be granted.

         I. Background

         On April 19, 2019, parties filed a joint motion to refer Plaintiff's claims against UPS to arbitration. [Doc. 8.] The motion was granted. (Apr. 22, 2019 Order [Doc. 10].)

         On April 2, 2019, Plaintiff filed a motion to remand in light of the forthcoming dismissal of Defendant UPS. (Mot. to Remand [Doc. 7].) The Court denied the motion, as UPS had not yet been dismissed. (May 13, 2019 Order [Doc. 11].)

         On May 17 and 22, 2019, respectively, Plaintiff filed a motion to dismiss UPS and for reconsideration of the previous motion to remand. (Mot. to Dismiss UPS [Doc. 12]; Mot. for Recon. [Doc. 13].) Each motion has a hearing date of July 1. Despite proper service on all defendants, no opposition to either motion is on file. (Proof of Service re: Mot. to Dismiss UPS [Doc. 12-2]; Proof of Service re: Mot. for Recon. [Doc. 13-3].)

         II. Legal Standard

         A. Voluntary Dismissal

         Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff to voluntarily dismiss an action without a court order by filing: “(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.” Fed.R.Civ.P. 41(a)(1). “Except as provided in Rule 41(a)(1), 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 decision of whether to allow a dismissal rests in the court's discretion. See Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982).

         “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Legal prejudice “means ‘prejudice to some legal interest, some legal claim, some legal argument.' ” Id. at 976 (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)). Plain legal prejudice, however, “does not result merely because the defendant will be inconvenienced by having to defend in another forum or where a plaintiff would gain a tactical advantage by that dismissal.” Smith, 263 F.3d at 976 (citing Hamilton, 679 F.2d at 145). Rather, the analysis turns on the “rights and defenses available to a defendant in future litigation.” See Westlands Water Dist., 100 F.3d at 97. “[I]n determining what will amount to legal prejudice, courts have examined whether a dismissal without prejudice would result in the loss of a federal forum, or the right to a jury trial, or a statute-of-limitations defense.” Id.

         A district court may condition voluntary dismissal on the plaintiffs' payment of the defendants' fees and costs. See Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993). The decision rests in the Court's discretion. See Stevedoring Servs. of Am. v. Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989). “A defendant is entitled only to recover, as a condition of dismissal under Fed.R.Civ.P. 41(a)(2), attorneys['] fees or costs for work which is not useful in continuing litigation between the parties.” See Koch, 8 F.3d at 652.

         B. Motion for Reconsideration

         Federal Rule of Civil Procedure 60(a) allows a Court to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” Fed.R.Civ.P. 60(a). “Substantive changes of mind by a court cannot be effected through Rule 60(a).” Buchanan v. United States, 755 F.Supp. 319, 324 (D. Or. 1990) (citing Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983)). However, “[a] court's failure to memorialize part of its decision . . . is a clerical error.” Id. at 324; see also Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987). Furthermore, “Rule 60(a) can be used to conform a judgment to a prior ruling.” Buchanan, 755 F.Supp. at 324.

         There are two ways by which a party may seek substantive reconsideration of an order: (1) Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment), or (2) Federal Rule of Civil Procedure 60(b) (motion for relief from ...


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