Frias v. Atria Senior Living Inc ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEFINA FRIAS, on behalf of herself and Case No. 1:20-cv-00403-AWI-SAB all others similarly situated, 12 ORDER DIRECTING CLERK OF COURT Plaintiff, TO ADJUST THE DOCKET TO REFLECT 13 VOLUNTARY DISMISSAL PURSUANT TO v. RULE 41(a) OF THE FEDERAL RULES OF 14 CIVIL PROCEDURE G4S SECURE SOLUTIONS (USA) INC., 15 (ECF No. 17) Defendant. 16 17 Josefina Frias, on behalf of herself and all others similarly situated, filed this action in the 18 Fresno County Superior Court and it was removed to the Eastern District of California. (ECF 19 No. 1.) On April 12, 2021, the matter was stayed for the parties to participate in mediation. 20 (ECF No. 16.) On July 8, 2021, the parties filed a stipulation to dismiss this action without 21 prejudice under Rule 41(a). (ECF No. 17.) 22 Rule 41 provides that the parties may voluntarily dismiss an action by a stipulation of 23 dismissal signed by all who have appeared, but this matter is subject to Rule 23(e). Fed. R. Civ. 24 P 41(a)(1)(ii). Pursuant to Rule 23(e) the claims, issues or defenses of a class that has been 25 certified or is proposed to be certified for the purposes of settlement can only be settled, 26 voluntarily dismissed, or compromised with the court’s approval. Fed. R. Civ. P. 23(e). 27 On December 1, 2003, Rule 23(e) was amended to allow the “parties to a proposed class 1 action to stipulate to dismissal of the action without any judicial approval where the class has not 2 yet been certified.” Sample v. Qwest Commc’ns Co. LLC, No. CV 10-08106-PCT-NVW, 2012 3 WL 1880611, at *3 (D. Ariz. May 22, 2012); see also Appeals by named plaintiffs and 4 defendants, 4 Newberg on Class Actions § 14:11 (5th ed.) (“Rule 23 requires judicial approval of 5 the settlement of certified cases only.”). “The Advisory Committee Notes to the 2003 rules 6 amendments confirm that Rule 23(e) does not apply to settlements or dismissals that occur 7 before class certification.” Sample, 2012 WL 1880661, at *3 (quoting Fed. R. Civ. P. 23(e) 8 advisory committee’s note (“The new rule requires approval only if the claims, issues, or 9 defenses of a certified class are resolved by a settlement, voluntary dismissal, or compromise.”).) 10 “The drafters of the amendments intended to ‘limit the reach of judicial approval’ of voluntary 11 dismissals of class action.” Sample, 2012 WL 1880661, at *3 (quoting Alexandra N. Rothman, 12 Bringing an End to the Trend: Cutting Judicial “Approval” and “Rejection” Out of NonClass 13 Mass Settlement, 80 Fordham L.Rev. 319, 330 (citing Fed. R. Civ. P. 23, Summary of Proposed 14 Amendments (Nov. 18, 2002) (explaining that approval “is not required if class allegations are 15 withdrawn as part of a disposition reached before a class is certified, because in that case, 16 putative class members are not bound by the settlement”)). While the voluntary dismissal has 17 been considered problematic, the revised rule does allow the parties to voluntarily dismiss the 18 action without court approval where the class has not been certified. Sample, 2012 WL 19 1880661, at *3; see also Voluntary dismissal, 2 McLaughlin on Class Actions § 6:1 (17th ed.) 20 (“where no class has been certified, voluntary dismissal or settlement of a putative class action in 21 federal court is governed not by Rule 23, but by Rule 41 of the Federal Rules of Civil 22 Procedure”.) 23 Here, no class has been certified and the matter is being dismissed as to all parties 24 without prejudice so that a consolidated complaint can be filed in an action currently proceeding 25 in state court. Accordingly, the Court finds that dismissal does not require a court order under 26 Rule 23(e). 27 In light of the stipulation of the parties, this action has been terminated, Fed. R. Civ. P. 1 | dismissed without prejudice. 2 Accordingly, the Clerk of the Court is HEREBY DIRECTED to adjust the docket to 3 | reflect voluntary dismissal of this action pursuant to Rule 41(a). 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ July 9, 2021 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28