United States District Court, S.D. California
ORDER: (1) GRANTING PLAINTIFF'S MOTION TO DISMISS
DEFENDANT UPS [DOC. 12]; AND (2) GRANTING PLAINTIFF'S
MOTION FOR RECONSIDERATION [DOC. 13]
Thomas J. Whelan United States District Judge
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.
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.
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
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].)
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.
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.
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.
Motion for Reconsideration
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.
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