Sobh v. Phoenix Graphix Incorporated ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sam Sobh, No. CV-18-04073-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Phoenix Graphix Incorporated, et al., 13 Defendants. 14 15 Pending before the Court are Defendants’ motion to alter or amend the judgment 16 (Doc. 24) and Defendants’ motion to substitute counsel of record (Doc. 25). For the 17 following reasons, both motions will be denied. 18 As background, on August 22, 2019, the Court granted Defendants’ motion to 19 dismiss. (Doc. 20.) Near the end of the order, the Court noted that Sobh had requested 20 leave to amend and that Defendants had not “ask[ed] the Court to dismiss any of Sobh’s 21 claims with prejudice.” (Id. at 11-12.) Thus, the Court stated, “to the extent Sobh wishes 22 to attempt to revive some or all of the claims that were dismissed in this Order, he is granted 23 leave to do so.” (Id. at 12.) The Court also set a deadline of September 13, 2019 by which 24 Sobh “may” file an amended complaint and instructed the Clerk of Court to “terminate this 25 action and enter judgment accordingly” if Sobh failed to do so. (Id.) 26 On September 17, 2019, after Sobh declined to file anything, the Clerk of Court 27 issued a judgment in Defendants’ favor, which specified that “the complaint and action are 28 dismissed without prejudice.” (Doc. 22, emphasis added.) 1 On September 26, 2019, Sobh filed a new lawsuit against the same Defendants. 2 That lawsuit has been randomly assigned to a different judge. (Case No. CV-19-5277- 3 SRB, Doc. 1.) The filing of this new lawsuit, in turn, has prompted Defendants to move to 4 amend the judgment in this case to reflect that Sobh’s claims were dismissed with 5 prejudice. (Doc. 24.) 6 This request will be denied. If the Court had ordered Sobh to file an amended 7 complaint by a certain deadline, only for Sobh to ignore that deadline, it might have been 8 possible to dismiss Sobh’s complaint under Rule 41(b) as a sanction for ignoring a court 9 order. Yourish v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). In that scenario, the 10 dismissal would arguably be with prejudice. See Fed. R. Civ. P. 41(b) (“Unless the 11 dismissal order states otherwise, a dismissal under this subdivision . . . operates as an 12 adjudication on the merits.”). But here, the Court didn’t order Sobh to do anything—after 13 dismissing his claims without prejudice, it merely gave him the option to file an amended 14 complaint by a certain deadline. The Ninth Circuit recently clarified that it would be 15 impermissible to issue a Rule 41(b) dismissal order under these circumstances. Applied 16 Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891-92 (9th Cir. 2019) (“[T]he district 17 court did not require that Plaintiff file an amended complaint following the initial Rule 18 12(b)(6) dismissal . . . and it did not indicate that failure to do so would result in dismissal 19 of the complaint pursuant to Rule 41(b). . . . A grant of leave to amend is not an order to 20 amend. Therefore, Rule 41(b) did not apply here, and the district court’s dismissal on this 21 ground constituted an abuse of discretion.”). 22 Thus, Defendants are incorrect in their assertion that “the Court was dismissing this 23 action without prejudice to Plaintiff’s ability to replead, but if Plaintiff failed to do so by 24 September 13, then the action would be terminated with prejudice to Plaintiff’s ability to 25 re-plead.” (Doc. 24 at 4.) To the contrary, the Court merely dismissed Sobh’s claims 26 without prejudice. Accordingly, the Clerk of Court didn’t commit a clerical error by 27 denoting, in the judgment, that the dismissal was without prejudice. 28 Defendants’ “manifest injustice” arguments (Doc. 24 at 4-5) also lack merit. A 1 || dismissal without prejudice does not bar refiling and relitigating the same claims. By missing the deadline for filing an amended complaint, Sobh lost the opportunity to proceed || with a new complaint without having to initiate a new action and pay a new filing fee. Moreover, a plaintiff who loses the opportunity to proceed in the case he initially filed, and 5 || who therefore must file an entirely new action, risks running afoul of any applicable 6|| statutes of limitations. Rinieri v. News Syndicate Co., 385 F.2d 818, 821 (2d Cir. 1967) 7\| CLA] dismissal without prejudice permits a new action (assuming the statute of limitations 8 || has not run) without regard to res judicata principles ....”); S. Gensler, | Federal Rules of 9|| Civil Procedure, Rules and Commentary, Rule 15, at 401-02 (2018) (“[A]fter a 10 || dismissal... without prejudice .. . the plaintiff is free to simply file a new action. Often, 11 || however, the plaintiff will prefer to keep the original suit alive via leave to amend, perhaps || because the statute of limitations has run and the plaintiff is trying to preserve the original 13 || filing date for relation back under Rule 15(c).”). But assuming no statute of limitations 14]| bars the new lawsuit, a dismissal without prejudice does not prevent a plaintiff from further 15 || litigating his claims. 16 Finally, as for Defendants’ motion to substitute counsel of record (Doc. 25), this 17 || motion is moot because the above-captioned case is closed. 18 Accordingly, 19 IT IS ORDERED that Defendants’ Rule 59(e) Motion to Amend the Judgment Or, 20 || in the Alternative, for Relief from Judgment Pursuant to Rule 60 (Doc. 24) is DENIED. 21 IT IS FURTHER ORDERED that Defendants’ motion to substitute counsel of 22 || record (Doc. 25) is DENIED AS MOOT. The above-captioned case is closed, and the 23 || parties are ordered not to file any further motions in the above-captioned case. 24 Dated this 22nd day of October, 2019. 25 6 _ 28 United States District Judge -3-