Stern v. RMG Sunset, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SCOTT STERN, Case No.: 17-CV-1646 JLS (NLS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION TO DISMISS 14 RMG SUNSET, INC., et al., 15 Defendants. 16 17 18 On October 23, 2020, Plaintiff Scott Stern responded to this Court’s Order to Show 19 Cause (ECF No. 23) and moved this Court to dismiss the matter with prejudice pursuant to 20 Fed. R. Civ. P. 41(a)(2) (“Mot.,” ECF No. 24). On October 18, 2019, the Parties stated in 21 a Joint Motion that they had reached a stipulation to dismiss this case in its entirety, with 22 prejudice, and would soon file a written stipulation for dismissal under Rule 41(a). ECF 23 No. 22. In the present Motion, Plaintiff states that “defense counsel no longer represents 24 Defendants with respect to this matter” and “[t]he parties were unable to engage directly 25 and agree on and submit a formal joint motion to dismiss.” Mot. at 1. 26 Federal Rule of Civil Procedure 41(a)(2) provides that “an action may be dismissed 27 at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. 28 R. Civ. P. 41(a)(2). However, “[i]f a defendant has pleaded a counterclaim before being 1 |/served with the plaintiff's motion to dismiss, the action may be dismissed over the 2 ||defendant’s objection only if the counterclaim can remain pending for independent 3 adjudication.” Fed. R. Civ. P. 41(a)(2). “A district court should grant a motion for 4 ||voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer 5 ||some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) 6 (citing Waller vy. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987); Hamilton □□ 7 || Firestone Tire & Rubber Co., 679 F.2d 143, 145—46 (9th Cir. 1982)). The decision to grant 8 ||or deny a motion to dismiss pursuant to Rule 41(a)(2) is within the sound discretion of the 9 || district court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). 10 Plaintiff states his claims were adjudicated and resolved as part of a related and 11 certified class action in the Los Angeles County Superior Court. See South v. Cabo 12 || Cantina, LLC, Los Angeles Superior Court, Case No. BC652906. Defendants have not 13 || pleaded a counterclaim in the present action. See generally Answers, ECF Nos. 2, 3. 14 || Furthermore, Defendants have not opposed Plaintiff's Motion or otherwise appeared in the 15 |} action since the Joint Status Report on October 18, 2019. 16 Good cause appearing, the Court GRANTS Plaintiffs Motion. The Court 17 || DISMISSES WITH PREJUDICE the action in its entirety, with each Party to bear its 18 costs and attorney’s fees. The Clerk of Court will close the file. 19 IT IS SO ORDERED. 20 ||Dated: October 27, 2020 tt 21 pee Janis L. Sammartino 79 United States District Judge 23 24 25 26 27 28