United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S NOTICE OF DISMISSAL
DOCKET NO. 139
M. CHEN UNITED STATES DISTRICT JUDGE
October 7, 2019, Plaintiff Diva Limousine, Ltd. filed a
Notice of Voluntarily Dismissal pursuant to Rule
41(a)(1)(A)(i) of the Federal Rules of Civil Procedure.
See Docket No. 139. That Notice included dismissal
of all individual claims with prejudice and dismissal of all
class claims without prejudice, with each side to bear its
own fees and costs. Id. That same day, the Court
issued an Order Requesting Information from the Parties.
See Docket No. 140. Specifically, the Court
requested that the parties provide information “about
the scope and nature of the publicity associated with this
putative class action, ” so that the Court might
appropriately safeguard the interests of absent plaintiffs.
thereafter, counsel for Defendants lodged a letter with the
Court challenging the Court's jurisdiction to issue such
an order. See Docket No. 143. Counsel stated that
the Notice of Voluntary Dismissal had been filed by Plaintiff
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A),
which permits voluntary dismissal by the plaintiff without a
court order “before the opposing party servers either
an answer or a motion for summary judgment.”
Fed.R.Civ.P. 41. However, Rule 41(a)(1)(A) also states that
it is “subject to Rule 23(e).” Id.
Rule 23(e), in turn, states that the “claims . . . of a
certified class . . . may be . . . voluntarily dismissed . .
. only with the court's approval.” Fed. R. Civ. P
23(e). Counsel relies on this language to conclude that-
because Defendant never filed an answer and because the
proposed class was never certified- court approval is not
required for Plaintiff's voluntary dismissal.
noted in the Court's previous order, the Ninth Circuit
has held that Rule 23(e) is applicable to precertification
class actions. Diaz v. Trust Territory of Pac.
Islands, 876, F.2d 1401, 1408 (9th Cir. 1989). Counsel
is correct in noting that Diaz predates the 2003 and
2007 amendments to the Federal Rules of Civil Procedure.
However, courts in the Northern District have continued to
apply Diaz to cases such as this one. More
specifically, courts have noted “some uncertainty about
whether Rule 23(e) still applies to pre-certification
settlement proposals but have generally assumed that it
does [apply].” Lyons v. Bank of Am.,
NA, No. C 11-1232 CW, 2012 WL 5940846, at *1 (N.D. Cal. Nov.
27, 2012) (emphasis added); see also Tombline v. Wells
Fargo Bank, N.A., No. 13-CV-04567-JD, 2014 WL 5140048,
at *2 (N.D. Cal. Oct. 10, 2014) (noting that “this
Court will follow Diaz” to evaluate the
proposed dismissal as “this approach is consistent with
Rule 23(e) as it exists today”); Mahan v. Trex Co.,
Inc., 2010 WL 4916417, at *3 (N.D. Cal. Nov. 22, 2010)
(noting that “even where the procedures of Rule 23(e)
do not apply automatically, ” court approval of class
settlements and dismissals is still required to determine if
there is evidence of collusion or prejudice (citations
omitted)). Pre-certification review is appropriate because it
affords a safeguard against any significant reliance interest
of putative class members who received notice of the action
but not its dismissal, and are thus unaware of,
e.g., statute of limitation issues consequential to
dismissal. See Am. Pipe & Const. Co. v. Utah,
414 U.S. 538 (1974). It also safeguards against any potential
abuse of the class action process.
the general practice of this district, the Court finds that
it does have jurisdiction to inquire into the publicity
associated with this putative class action, and that doing so
is appropriate. As a result, it turns to the responses
provided by the parties. See Docket Nos. 141, 142.
The response provided by Plaintiff's counsel notes that
publicity associated with the case “has principally
appeared in legal press” and that The Daily Journal has
“referenced this case only three times.” Docket
No. 141 at 2. It further observes that coverage in the
popular press has been “modest” and
“principally concerned . . . [with] the filing of the
complaint and the disqualification of the Keller Lenkner
firm.” Id. With respect to information shared
with putative class members, the letter alleges that
“counsel has communicated with less than a half dozen
putative class representatives/class members” and
“no information about the case has been shared with the
public or putative class members other than the information,
whether verbatim or in summary, that appears as a matter of
record in this action, and strategic matters covered by the
work product doctrine concerning the suitability of certain
individual and types of entities to serve as class
representatives.” Id. at 2-3.
the Court GRANTS Plaintiffs Notice of
order disposes of Docket No. 139. The Clerk is instructed to
enter Judgment and close the file.