Woytenko v. Ochoa ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alexander W Woytenko, et al., No. CV-19-00413-TUC-DCB 10 Plaintiffs, ORDER 11 v. 12 Jose Ricardo Lopez Ochoa, et al., 13 Defendants. 14 15 Holding 16 The Court grants the Rule 41(a)(2) Motion for Voluntary Dismissal, with prejudice. 17 Procedural Posture, Discussion and Rationale 18 On August 20, 2019, Plaintiffs filed the Complaint alleging a federal cause of action 19 under the federal Motor Vehicle Information and Costs Savings Act (FOA), also known as 20 the federal Odometer Act, 49 U.S.C. § 32701, et seq. The Odometer Act prevents odometer 21 tampering and includes other general safeguards for the protection of consumers, 49 U.S.C. 22 § 32701, with five major substantive provisions. It establishes procedures to follow when 23 a motor vehicle repair results in a change in the odometer reading. It requires written 24 certifications be made each time a vehicle is transferred. The transferor must disclose the 25 odometer reading and whether the odometer reading is accurate, has exceeded its 26 mechanical limits, or is inaccurate. It prohibits false statements in conjunction with the 27 disclosures and prohibits parties from conspiring to violate any of the Act’s provisions. It 28 prevents transfers made in violation of the statutory provisions with the intent to defraud a 1 buyer. 2 The regulatory transfer provisions are incorporated into title documents which 3 require “each transferor to disclose the mileage in writing on the title” or “on the document 4 being used to reassign the title,” and the transferor must certify that “to the best of his 5 knowledge the odometer reading reflects the actual mileage.” 49 U.S.C. § 32701(b); 49 6 C.F.R. § 580.5 (c), (e). The Act’s disclosure requirements are central to the Act’s 7 effectiveness. Even if a transferor has not tampered with the odometer, a transferor may 8 violate the Act by violating the disclosure requirements. Ryan v. Edwards, 592 F.2d 756, 9 760 n.4 (4th Cir. 1979). The disclosure requirements create a paper trail of the odometer 10 reading at each transfer, facilitating investigation of odometer fraud. 11 Courts have found that plaintiffs have standing to sue other transferors who are in 12 the chain of ownership and who have given a false odometer statement, even if there was 13 no false statement made directly to the plaintiff by those transferors. See Carrasco v. Fiore 14 Enterprises, 985 F.Supp. 931, 939 (D. Ariz. 1997) (“if a defrauded ultimate purchaser 15 could sue only a violator of the Act who directly transferred the vehicle to him, each owner 16 in the chain of title who discovered the violation and then perpetuated the fraud by selling 17 the vehicle without disclosing the violation would be insulated from liability merely 18 because the vehicle was sold many times.”) 19 The Plaintiffs allege that on April 18, 2019, they bought a Ram truck from 20 Defendant Ochoa, which he fraudulently represented had only 118,600 actual miles on it. 21 The front of the Ram truck title reflected it was a B title, which means that the milage on 22 the vehicle is in excess of the odometer’s mechanical limits of 999,999 miles. Defendant 23 Ochoa did not, however, provide the corresponding transfer certification on the back of the 24 title that the millage exceeded the odometer’s mechanical limit. Instead, he certified these 25 were actual miles. (Complaint (Doc. 1-2) at 17.) 26 According to admissions made by Defendant Ochoa in an unsworn affidavit: 27 Defendant Johnson, acting as owner and agent for Defendants Buster Wholesale 28 Auto/Jeff’s Auto, bought the Ram truck from Jim Click as a favor for Ochoa, who paid 1 him for it in two installments. Ochoa knew that the odometer had not rolled over because 2 he had mechanical work done on the vehicle which caused the odometer to be rolled back 3 to reflect an inaccurate millage reading. He sold the truck to Defendant Arballo, and when 4 completing the certification of milage statements on the title transfer documents to Arballo, 5 which contained Johnson’s 271,801 odometer certification, Ochoa checked the wrong box 6 reflecting the odometer had rolled over, not that it had been changed to 118,600 miles. 7 Later Ochoa sold the truck to Woytenko and certified that the odometer reflected actual 8 milage. The Plaintiffs allege that Ochoa advertised the Ram truck as having, and they 9 bought it believing it had, actual miles on the odometer. (Motion to Set Aside Default 10 (MSA), Ex. C (Doc. 11-1) at 13); (Complaint (Doc. 1-2) at 2, 5.) 11 The Plaintiffs sued all the sellers in the chain of title going back to the original 12 March 5, 2018, sale by Jim Click to Buster Wholesale Auto,1 which correctly certified the 13 Ram truck had 271,801 actual miles on the odometer. (Complaint (Doc. 1-2) at 2.) The 14 transfer certifications on the back of that title reflected a dealer transfer by Defendant 15 Johnson, acting for Jeff’s Auto, selling the vehicle with 271,801 on the odometer to 16 Defendant Arballo on June 13, 2018, and these were miles in excess of the odometer’s 17 mechanical limit. Id. This certification of course makes no sense because by then the 18 odometer had been rolled back according to Ochoa’s admission. (Complaint (Doc. 1-2) at 19 5.) 20 After the June 13, 2018, transfer to Arballo, the title for the Ram truck always 21 reflected it was a B title, meaning the odometer had rolled over at 999,999 miles. This was 22 not true. The odometer was rolled back. The issue in this case concerns the representations 23 made by various Defendants in the odometer certifications which caused Plaintiffs’ to 24 believe they were purchasing a vehicle with 129,077 actual miles on the odometer. 25 Even though the transfer to Arballo reflected 271,800 miles in excess of the 26 odometer’s mechanical limitation, Arballo sold the truck to Defendant Sotos on July 11, 27 2018 and certified the odometer had 118,600 actual miles. (Complaint (Doc. 1-2) at 5.) The 28 1 Defendant S.W. Industries is doing business as Jeff’s Auto. 1 Court assumes they discovered the Ram truck’s B title because the record reflects that 2 Defendant Ochoa bought the truck back from the Sotos and on August 15, 2018. They 3 certified it had 118,600 miles in excess of the odometer’s mechanical limits. (Complaint 4 (Doc. 1-2) at 12.) Ochoa drove the truck for a short time, then sold it to the Plaintiffs 5 Woytenko on April 18, 2019, making the certification, at issue here, that it had 129,077 6 actual miles on the odometer. (Complaint (Doc. 1-2) at 17.) 7 On September 25, 2019, the Clerk of the Court entered default against Buster 8 Wholesale Auto/Jeff’s Auto after they were served and failed to Answer. In October 2019, 9 they filed a Motion to Set Aside the default, which the Court granted in part because these 10 Defendants posited a meritorious defense by submitting documents, signed by Johnson, 11 acting on behalf of Jeff’s Auto, that transferred the Ram truck to Ochoa on March 22, 2018, 12 and he certified that there were 271,801 miles on the odometer, the same number certified 13 by Jim Click as actual miles. Defendants also submitted the unsworn, notarized admission 14 by Defendant Ochoa. 15 The remaining Defendants, including Defendant Ochoa, have been dismissed after 16 Plaintiffs were unsuccessful, even after an extension of time, to serve them. Plaintiffs 17 voluntarily dismissed Ochoa and Arballo, without prejudice (Doc. 19) and Defendants 18 Soto,2 with prejudice (Doc. 28). Plaintiffs refused to do the same for Defendants Johnson, 19 Buster Motors Wholesale and Jeff’s Auto (the Johnson Defendants). 20 On October 30, 2020, the Johnson Defendants filed a Motion for Summary 21 Judgment (MSJ) (Doc. 26), essentially arguing the defense they promoted as meritorious 22 in the Motion to Set Aside the Default. Defendants submitted the same Arizona Department 23 of Transportation (ADOT) Department of Motor Vehicle (MVD) documents and unsworn, 24 notarized statement from Ochoa that were submitted with the Motion to Set Aside. 25 Defendants added a sworn affidavit from Johnson that he bought the truck for Buster 26 Motors Wholesale, assigned it to Jeff’s Auto, sold it to Ochoa on March 22, 2018, certified 27 28 2 These Defendants appear to be innocent buyers, who purchased the vehicle from Arballo based on a false representation that the truck had 118,309 actual miles. 1 it had 271,801 actual miles, and did not check the transfer of title certification box that the 2 odometer exceeded its mechanical limitation. (MSJ (Doc. 26)). 3 Instead of filing a Response, the parties stipulated to a short extension to allow 4 Plaintiff about a week to finalize the Response and because “the parties [were] in 5 discussion of a complete and final resolution of the matter and believe[d] that it 6 [could] be accomplished within this time frame.” (Doc. 29) at 1-2.) Next, Plaintiff filed 7 a Notice/Motion, pursuant to Fed. R. Civ. P. 41(a)(2), to voluntarily dismiss the case 8 against the Johnson Defendants, and asked that the dismissal be with prejudice and 9 for each side to bear their own attorney fees. (Motion to Dismiss (MD) (Doc. 32)) 10 Fed. R. Civ. P. 41(a)(2) allows a Court to dismiss an action at a plaintiff’s request 11 after a defendant files an answer or motion for summary judgment “on terms that the court 12 considers proper.” The Defendants argue that they have been forced to needlessly incur 13 attorney fees because Plaintiffs refused to voluntarily dismiss the action after they 14 presented definitive evidence in October 2019 in the Motion to Set Aside the Default that 15 they had no involvement in the claims giving rise to this action. The Johnson Defendants 16 ask the Court to grant the motion to dismiss the case with prejudice, and to require the 17 Plaintiffs to pay Defendants’ attorney fees based on Rule 11 as a sanction for the Plaintiffs’ 18 vexatious litigation. Alternatively, Defendants ask the Court to rule on the pending motion 19 for summary judgment and, thereafter, they will seek attorney fees as the prevailing party. 20 (Response to MD (Doc. 35)). 21 The Plaintiffs counter that such attorney fees are not available under the FOA. 22 (Reply (Doc. 39) at 12-14 (citing 49 U.S.C. § 32710(b) and litany of out of circuit cases). 23 The Reply asserts the merits of their case, as follows: 24 [W]hen Plaintiffs filed this case it appeared on the face of the Jim Click title that Ron Johnson, on behalf of Buster Wholesale Auto or Jeff’s Auto, 25 provided an odometer certification which was false, i.e. that the odometer reading was beyond the mechanical limits of the Truck’s odometer. 26 Moreover, on that same title, it was also clear that Jeff’s Auto was inserted in Buster Wholesale’s position as the seller of the Truck, without 27 any assignment from one to the other. It was also clear from the Title that the buyer of the Truck was Arballo. These facts did not change during the 28 course of litigation. The title records did not change during the course of this litigation. Even as Defendants have tried to message [sic] the facts to escape 1 liability, the Title records are unchanged. There was no bad faith on Plaintiffs’ or counsel’s part. 2 3 (Reply (Doc. 39) at 14-15.) Plaintiffs challenge the persuasiveness of Ochoa’s unsworn 4 statement that he was responsible for the odometer change because it was self-serving and 5 biased, given Johnson was allegedly doing Ochoa a favor in purchasing the vehicle for him. 6 Plaintiffs argue that even the biased Ochoa statement does not comport with the title 7 records and documents which show that Johnson made the first false certification on the 8 title regarding the odometer reading on the Ram truck or at least he failed to properly record 9 the Ochoa sale, enabling the false certification to be made in conjunction with the Arballo 10 sale. 11 The alleged false certification by Johnson relied on by the Plaintiffs is that the Ram 12 truck odometer read 271, 801 miles, with milage exceeding the odometer’s mechanical 13 limits, meaning it had rolled over at 999,999 miles. (MSA (Doc. 11-1) at 11; MSJ (Doc. 14 26) at 10). First, the Plaintiffs ignore that Johnson certified that there were 271,801 miles 15 on the odometer, which were the actual miles on the truck as certified by Jim Click. Second, 16 the false certification that the odometer had rolled over is not the alleged false 17 representation from which the Plaintiffs’ claims arise. They assert that they were told the 18 Ram truck’s odometer reflected actual miles. 19 The Plaintiffs challenge the lack of authentication of the documents relied on by the 20 Defendants to prove they were not involved in rolling back the odometer to 118, 309 miles 21 and did not make any false certifications on title transfer documents. Plaintiffs assert the 22 documents tendered by the Defendants were not found when they searched the motor 23 vehicle records for the Ram truck and could have been produced by Defendants after the 24 fact. While this may be true for the purchase and sale agreement which reflects that Jeff’s 25 Auto sold Ochoa the Ram truck on March 22, 2018, the Motor Vehicle Audit Report, which 26 reflects Johnson’s purchase, assignment, and sale, and the Secure Odometer Disclosure, 27 which reflects Johnson certified 271,801 actual miles, are both copies of official ADOT 28 MVD records. Both support the purchase and sale agreement of the Ram truck to Ochoa 1 on March 22, 2018, and Ochoa’s notarized statement that he owned the truck when the 2 odometer was rolled back, and when he sold it to Defendant Arballo, he “mistakenly” 3 checked the box certifying that the odometer had rolled over. See above citations to the 4 record. 5 Because Plaintiffs have moved for voluntary dismissal pursuant to Rule 41(a)(2), 6 the Court does not need to reach Defendants’ Rule 11 assertions that Plaintiffs acted “‘in 7 bad faith, vexatiously, wantonly, or for oppressive reasons.’” (Ds Response to MD (Doc. 8 35) at 8 (quoting Eastway Construction Corp., v. City of New York, 762 F.2d 243, 253 (2nd 9 Cir., 1985)). “Vexatious litigation includes continuing a lawsuit after discovery of the facts 10 shows it has absolutely no merit.” Id. (quoting Legal definitions search for “Vexatious 11 Litigation”). “[S]anctions shall be imposed against an attorney and/or his client. . .where 12 after reasonable inquiry, a competent attorney could not form a reasonable belief that the 13 pleading is well grounded in fact and is warranted by existing law or a good faith argument 14 for the extension, modification or reversal of existing law.” Id. (quoting Eastway at 254). 15 The Court shall not dismiss a case as a sanction unless some lesser sanction would suffice 16 to deter repetition of the conduct or comparable conduct by others similarly situated, i.e., 17 an award of attorney fees. Fed. R. Civ. P. 11(c)(4). 18 The Plaintiffs are correct that the Defendants have not complied with Rule 11(c)(2), 19 which requires that a motion for sanctions be made separately from any other motion and 20 describe the specific conduct that allegedly violated Rule 11(b), be served under Rule 5 21 and not filed or presented to the court if the challenged paper, claim, defense, contention 22 or denial is withdrawn or appropriately corrected within 21 days after service or within 23 another time the court sets. Then, if warranted, the court may award to the prevailing party 24 reasonable expenses, including attorney’s fees incurred for the motion. 25 Regardless of Rule 11, and even if Plaintiffs’ conduct does not rise to a level of 26 egregiousness warranting sanctions, the Court may consider the Plaintiffs’ conduct, 27 especially diligence, when exercising its discretion under Rule 41(a)(2) to condition 28 granting dismissal on terms it deems proper. 1 Pursuant to Rule 41(a)(2), dismissal should be granted unless the defendant can 2 show that it will suffer some clear legal prejudice as a result. Smith v. Lenches, 263 F.3d 3 972, 975 (9th Cir.2001). The Ninth Circuit interprets legal prejudice as “prejudice to some 4 legal interest, some legal claim, some legal argument.” Westlands Water District v. United 5 States, 100 F.3d 94, 96 (9th Cir. 1996). “[L]egal prejudice does not result merely because 6 the defendant will be inconvenienced by having to defend in another forum or where a 7 plaintiff would gain a tactical advantage by that dismissal.” Smith, 263 F.3d at 976. The 8 loss of a federal forum or a lost opportunity to resolve a particular dispute does not establish 9 legal prejudice. Westlands, 100 F.3d at 97. Further, the expense incurred defending a 10 lawsuit is also not sufficient because “[t]he defendants' interests can be protected by 11 conditioning the dismissal without prejudice upon the payment of appropriate costs and 12 attorney fees.” Id. 13 It is undisputed that that there is no legal prejudice to Defendants if this action is 14 voluntarily dismissed and, therefore, the Motion for Voluntary Dismissal should be 15 granted. Unless ordered “otherwise, dismissal under this paragraph (2) is without 16 prejudice.” Fed. R. Civ. P. 41(a)(2). 17 Here, the Plaintiffs seek Rule 41(a)(2) voluntary dismissal with prejudice and 18 Defendants agree. The dispute is whether the terms of the dismissal should be for each 19 party to bear their own attorney fees and costs or with an award of attorney fees and costs 20 for the Defendants. 21 In deciding a motion under Rule 41(a)(2), the Court must decide: (1) whether to 22 allow dismissal; (2) whether the dismissal should be with or without prejudice; and, (3) 23 what terms and conditions, if any, should be imposed. Fed. R. Civ. P. 41(a) (2); Williams 24 v. Peralta Cnty. Coll. Dist., 227 F.R.D. 538, 539 (N.D.Cal.2005). The discretion afforded 25 the Court under Rule 41(a)(2) extends to whether the dismissal is with or without prejudice. 26 Diamond State Ins. Co. v. Genesis Ins. Co., 379 Fed.Appx. 671, 673 (9th Cir. 2010) (citing 27 Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002)). 28 1 “The Ninth Circuit Court of Appeals has observed that, as Rule 41(a)(2) exists 2 chiefly for the defendant's protection, the court has the discretion to condition a dismissal 3 without prejudice upon the payment of the defendant's ‘appropriate costs and attorney 4 fees.’” Chang v. Pomeroy, 2011 WL 618192, at *1 (E.D. Cal. Feb. 10, 2011) (quoting 5 Westlands, 100 F.3d at 96. A court should only award fees and costs to a defendant for 6 work that cannot be used in an ongoing or future litigation. Id. at 97. This protects the 7 defendant from incurring double attorney fees and costs in the event a second action is filed 8 subsequent to the dismissal. 9 Courts consider the following factors for determining whether dismissal should be 10 with or without prejudice: “(1) the defendant's effort and expense involved in preparing for 11 trial; (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the 12 action; and (3) insufficient explanation of the need to dismiss.” Fraley v. Facebook, Inc., 13 2012 WL 893152, at *3 (N.D. Cal. Mar. 13, 2012) (quoting Burnette v. Godshall, 828 14 F.Supp. 1439, 1443–44 (N.D.Cal.1993) (quoting Paulucci v. City of Duluth, 826 F.2d 780, 15 783 (8th Cir.1987)). Dismissal with prejudice may be appropriate where “it would be 16 inequitable or prejudicial to defendant to allow plaintiff to refile the action.” Burnett, 828 17 F.Supp. at 1443; see Williams, 227 F.R.D. at 539–40. 18 In Stevedoring Servs. of Am. v. Armilla Int'l B.V., 889 F.2d 919 (9th Cir.1989), the 19 court considered whether the district court abused its discretion to dismiss an action 20 pursuant to Rule 41(a)(2), without prejudice and without awarding attorney fees and costs 21 for defendant. First, it determined that attorney fees are not a requisite term for such 22 dismissal. Stevedoring, 889 F.2d at 921. A court cannot impose fees and costs as a 23 condition of voluntary dismissal absent some basis other than the mere fact of the plaintiff's 24 request for Rule 41(a)(2). Heckethorn v. Sunan Corp., 992 F.2d 240, 242 (9th Cir.1993). 25 In Stevedoring, the appellate court addressed the factors considered by the district 26 court, as follows: 1) whether the action was taken in good faith, 2) whether the defense 27 costs incurred were not undertaken unnecessarily, 3) whether such awards would 28 discourage future voluntary dismissals, and 4) whether the award of fees and costs would 1 produce an anomalous result if defendants could not recover costs and attorney fees if they 2 prevailed at trial. The court held that it was not decided in the Ninth Circuit, and declined 3 to decide, whether good faith is a relevant factor, id. at 921, because the district court 4 considered other legitimate factors. The court referred to the district court’s finding that 5 the action involved a close and meritorious question, which once decided, the plaintiff 6 timely moved for voluntary dismissal. The Court affirmed the district court’s refusal to 7 order the payment of costs and attorney fees as a condition precedent to voluntary dismissal 8 without prejudice under Fed.R.Civ.P. 41(a)(2). Stevedoring, 889 F.2d at 921-22. 9 Considering the Defendants’ effort and expense involved in preparing the case for 10 disposition by summary judgment, the Plaintiffs’ delay and lack of diligence in seeking the 11 voluntary dismissal, the Court finds that dismissal should be, as requested by the Plaintiffs, 12 with prejudice. This, however, brings the Court to the merits of the terms proposed by the 13 Plaintiffs, which is that it should be so dismissed with each party to bear their own costs 14 and fees. “The court in Heckethorn left open the issue of whether a district court can 15 impose payment of fees and costs as a condition when Rule 41(a)(2) dismissal is with 16 prejudice, but district courts in the Ninth Circuit have determined that the payment of fees 17 and costs ordinarily should not be imposed as a condition for voluntary dismissal with 18 prejudice.” Chang v. Pomeroy, 2011 WL 618192 *1 (Calif. February 10, 2011) (emphasis 19 in original) (citing unpublished decisions: Chavez v. Northland Group, 2011 WL 317482, 20 at *4 (D.Ariz. Feb.1, 2011) (granting plaintiff's motion to dismiss with prejudice and 21 denying defendant's request for attorney fees and costs), Burnette v. Godshall, 828 F.Supp. 22 1439, 1443 (N.D.Cal.1993) (declining to award costs and attorney fees where dismissal 23 was with prejudice); cf., Steinert v. Winn Group, Inc., 440 F.3d 1214, 1222 (10th Cir.2006) 24 (holding that attorney fees may be imposed under Rule 41(a)(2) only in exceptional 25 circumstances where dismissal is with prejudice). 26 Additionally, in exercising its discretion, the Court must consider the terms of the 27 request for voluntary dismissal with prejudice as posited by the Plaintiffs, which is that 28 each side bear their own fees and costs, and whether they will withdraw that request in the 1 event the Court declines to impose the proposed terms. Beard v. Sheet Metal Workers 2 Union, Local 150, 908 F.2d 474, 475–77 (9th Cir. 1990) (in Ninth Circuit, Rule 41(a)(2) 3 language effectively provides “‘a reasonable period of time within which [either] to refuse 4 the conditional voluntary dismissal by withdrawing [the] motion for dismissal or to accept 5 the dismissal despite the imposition of conditions.’” Unioil, Inc. v. E.F. Hutton & Co., 809 6 F.2d 548, 554 (9th Cir.1986) (quoting Lau v. Glendora Unified School Dist., 792 F.2d 929, 7 931 (9th Cir.1986)). 8 Relevant here, Plaintiffs ask the Court to allow more time to file a Response, if the 9 Court grants the Defendants’ request to rule on the pending motion for summary judgment 10 if it is inclined to deny it attorney fees and costs. (Reply (Doc. 39) at 16.) This is not the 11 same as saying it will withdraw the motion for voluntary dismissal if the Court does not 12 order each side to bear their own attorney fees and costs. Therefore, the Court shall allow 13 Plaintiffs an opportunity to withdraw the Motion for Voluntary Dismissal because the 14 Court does not grant the dismissal based on the Plaintiffs’ proposed term that each party 15 bear their own fees and costs. 16 Conclusion 17 The Court grants the Motion for Voluntary Dismissal with prejudice as requested 18 by the Plaintiffs and agreed to by Defendants, without any terms either for or against an 19 award of attorney fees. All is not lost for Defendants because the dismissal is a final 20 judgment, and Defendants are the prevailing party. Beard, 908 F.2d at 477 n.3. As such, 21 Defendants may seek attorney fees and costs. This approach has been suggested in Phillips 22 v. P.F. Chang's China Bistro, Inc., 2016 WL 3136925, at *1–4 (N.D. Cal. June 6, 2016) 23 for costs. In Phillips, the plaintiff sought dismissal with prejudice and apposed defendant’s 24 request for an award of costs. The court in Phillips considered case law from the Supreme 25 Court and the Ninth Circuit, and held that the plaintiff's voluntary dismissal with prejudice 26 conferred prevailing party status on the defendant “because it operates as a judgment upon 27 the merits and materially alters the parties' legal relationship by barring plaintiff from re- 28 filing the claim against defendant in federal court.” Id. at *3. The court held that “[a]s the 1 prevailing party, defendant presumptively should be allowed to collect its costs pursuant 2 to Rule 54(d)(1).” Id. Federal Rule of Civil Procedure 54(d)(1) states: “Unless a federal 3 statute, these rules, or a court order provides otherwise, costs—other than attorney's fees— 4 should be allowed to the prevailing party.” Id. at 2. The Court applies this same logic to 5 the attorney fee dispute between the parties here. The Court grants the Plaintiffs’ Rule 6 41(a)(2) Motion for Voluntary Dismissal with Prejudice. As the prevailing party, the 7 Defendants may file a motion for attorney fees and costs. LRCiv. 54.2. 8 The Court affords the Plaintiffs a reasonable period of time to withdraw its voluntary 9 dismissal, which will result in this Court’s disposition of the pending motion for summary 10 judgment. 11 Accordingly, 12 IT IS ORDERED that within 14 days of the filing date of this Order the Plaintiffs 13 shall withdraw the Rule 41(a)(2) Motion for Voluntary Dismissal (Doc. 32) or it shall be 14 granted with prejudice, without any terms for payment of attorney fees or costs. 15 IT IS FURTHER ORDERED that in the event the motion for voluntary dismissal 16 is not withdrawn, the Clerk of the Court shall enter Judgment, pursuant to the Motion for 17 Voluntary Dismissal with prejudice in favor of Defendants and against the Plaintiffs. 18 IT IS FURTHER ORDERED that in the event the motion for voluntary dismissal 19 is not withdrawn, the Defendants may seek attorney fees and costs as prevailing parties, 20 pursuant to LRCiv. 54.2. 21 IT IS FURTHER ORDERED that in the event the motion for voluntary dismissal 22 is not withdrawn, the Motion for Summary Judgment (Doc. 26) is DENIED AS MOOT. 23 ////// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 IT IS FURTHER ORDERED that in the event the Plaintiff withdraws the Rule 2|| 41(a)(2) Motion for Voluntary Dismissal (Doc. 32), the Response to the Motion for || Summary Judgment shall be simultaneously due within 14 days of the filing date of this Order. 5 Dated this 25th day of February, 2021. 6 SS . SY ° Honorabje David C. But 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13-