Doris Anderson v. County of Fresno ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 DORIS ANDERSON, et al., Case No. 1:21-cv-01134-ADA-SAB 11 Plaintiffs, ORDER RE STIPULATION TO DISMISS 12 PLAINTIFF’S SECOND CAUSE OF v. ACTION AGAINST DEFENDANTS, 13 GENEVIEVE GARCIA, R.N. AND MARIA COUNTY OF FRESNO, et al., GUERRERO, R.N. 14 Defendants. (ECF No. 88) 15 SEVEN DAY DEADLINE 16 17 18 On October 4, 2023, Plaintiffs and Defendants California Forensic Medical Group, Inc. 19 (“CFMG”), Genevieve Garcia, R.N., and Maria Guerrero, R.N. filed what was titled a joint 20 stipulation to dismiss Plaintiffs’ second cause of action against Defendants Genevieve Garcia, 21 R.N., and Maria Guerrero, R.N. (ECF No. 88.) However, the body of the filed document is in 22 the form of a stipulation of dismissal under Federal Rule of Civil Procedure 41(a), signed by 23 only Plaintiffs and Defendants California Forensic Medical Group, Inc. (“CFMG”), Genevieve 24 Garcia, R.N., and Maria Guerrero, R.N. 25 The Ninth Circuit has held that Federal Rule of Civil Procedure 41(a)(1) cannot be used 26 to dismiss individual claims against defendants, and that Rule 15 is the proper mechanism to do 27 so. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (“In the specific context of Rule 41(a)(1), we have held that the Rule does not allow for piecemeal 1 dismissals. Instead, withdrawals of individual claims against a given defendant are governed by 2 [Rule 15].”); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988) (holding a 3 plaintiff cannot use Rule 41 “to dismiss, unilaterally, a single claim from a multi-claim 4 complaint.”); but see Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (“The 5 Plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 6 41(a)(1) notice.”). Accordingly, Rule 41(a) may not be employed to dismiss fewer than all the 7 claims against a particular defendant. See Ethridge, 861 F.2d at 1392. 8 The stipulating parties in the instant motion are requesting that the Court eliminate only 9 the second cause of action against Defendants Genevieve Garcia, R.N. and Maria Guerrero, R.N. 10 (See ECF 88.) However, both Defendants remain named defendants in other causes of action in 11 the second amended complaint. (See ECF 85.) Because the instant motion requests dismissal of 12 fewer than all claims asserted against Defendants Genevieve Garcia, R.N. and Maria Guerrero, 13 R.N., Rule 15, not Rule 41, is the proper vehicle to accomplish the partial dismissal. 14 The Court finds it proper to construe the parties’ instant stipulation to dismiss the second 15 cause of action against Genevieve Garcia, R.N., and Maria Guerrero, R.N. as consent to amend 16 the complaint under Rule 15 of the Federal Rules of Civil Procedure. See Hells Canyon Pres. 17 Council, 403 F.3d at 689 (“The fact that a voluntary dismissal of a claim under Rule 41(a) is 18 properly labeled an amendment under Rule 15 is a technical, not a substantive distinction.”) 19 (quoting Nilssen v. Motorola, Inc., 203 F.3d 782, 784 (Fed. Cir. 2000)). However, Federal Rule 20 of Civil Procedure 15(a)(2), states “a party may amend its pleading only with the opposing 21 party’s written consent or the court’s leave.” Here, Defendants County of Fresno, Fresno County 22 Sheriff-Coroner Margaret Mims, Correctional Lieutenant Jami Carter, Sergeant Chris Garcia, 23 and Officers Frank Ponce, Moises Franco, Meng Cha, Linda Thao, Ka Her, Jose Alanis, Anthony 24 Sanchez, Rachel LeBoeuf, David Ventura, Dillon Owens, and Jonathan Sanchez have not agreed 25 to the instant motion. If these Defendants consent or otherwise file a non-opposition to the 26 instant stipulation (ECF No. 88), the Court will grant Plaintiffs leave to file an amended 27 complaint pursuant to Rule 15. The Court will otherwise take any opposition by these 1 Accordingly, IT IS HEREBY ORDERED that within seven (7) days of entry of this 2 |order, Defendants County of Fresno, Fresno County Sheriff-Coroner Margaret Mims, 3 | Correctional Lieutenant Jami Carter, Sergeant Chris Garcia, and Officers Frank Ponce, Moises 4 | Franco, Meng Cha, Linda Thao, Ka Her, Jose Alanis, Anthony Sanchez, Rachel LeBoeuf, David 5 | Ventura, Dillon Owens, and Jonathan Sanchez shall file a statement signifying whether they 6 | approve or disapprove of the terms of the stipulation filed on October 4, 2023 (ECF No. 88), and 7 | consent to allowing for Plaintiffs’ second cause of action against Defendants Genevieve Garcia, 8 | R.N., and Maria Guerrero, R.N. be dismissed with prejudice. 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _ October 5, 2023 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28