Kideckel v. Wells Fargo Bank, N.A. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 BRENT KIDECKEL, Case No. 3:20-cv-0681-DMS-JLB 11 Plaintiff, ORDER GRANTING 12 PLAINTIFF’S MOTION TO v. DISMISS WITH PREJUDICE 13 WELLS FARGO BANK, N.A., 14 Defendant. 15 16 17 Before the Court is Plaintiff Brent Kideckel’s motion to dismiss. Defendant 18 Wells Fargo opposes the motion. For the reasons discussed below, the motion is 19 granted. 20 I. 21 BACKGROUND 22 On February 28, 2020, Plaintiff, proceeding pro se, filed the instant action in the 23 Superior Court of California for the County of San Diego alleging that Defendant 24 violated the United States Expedited Funds Availability Act, 12 U.S.C. § 4001, et seq. 25 (See ECF No. 1-2, at 2–6.) Defendant removed the case to this Court on April 8, 2020. 26 (ECF No. 1.) 27 On December 31, 2020, Plaintiff filed a motion to dismiss this case. (ECF No. 1 parties to bear their own costs. (Id.) Defendant filed an opposition to Plaintiff’s motion 2 on January 22, 2021. (ECF No. 41.) On February 3, 2021, Plaintiff filed a notice of 3 intention to withdraw his motion to dismiss. (ECF No. 48.) However, on March 1, 4 2021, Plaintiff filed another motion to dismiss. (ECF No. 51.) 5 II. 6 DISCUSSION 7 Federal Rule of Civil Procedure 41(a)(2) outlines the circumstances under which 8 a Plaintiff may voluntarily dismiss his own complaint by court order. The Rule dictates 9 that “except as otherwise provided in Rule 41(a)(1), an action may be dismissed at the 10 plaintiff's request only by court order, on terms that the court considers proper.”1 Fed. 11 R. Civ. P. 41(a)(2). “A motion for voluntary dismissal under Rule 41(a)(2) is addressed 12 to the sound discretion of the district court[.]” Sams v. Beech Aircraft Corp., 625 F.2d 13 273, 277 (9th Cir. 1980). Further, voluntary dismissals under Rule 41(a)(2) are 14 generally permitted “so long as the defendant will not be prejudiced or unfairly affected 15 by dismissal.” See Stevedoring Serv. v. Armilla Int’l, B.V., 889 F.2d 919, 921 (9th Cir. 16 1989) (citations omitted). 17 Here, Plaintiff attests that he is “no longer able to prosecute the claim and asks 18 that the court dismiss the claim with prejudice.” (ECF No 51.) Defendant grounds its 19 opposition to dismissal on the fact that “Plaintiff has repeatedly threatened to file 20 additional lawsuits against Wells Fargo.” (ECF No. 41, at 2.) But “[p]rejudice does not 21 arise simply because a second action has been or may be filed against the defendant.” 22 23 24 1 Rule 41(a)(1)(A) provides that a plaintiff may voluntarily dismiss his case without a 25 court order only where explicitly allowed by statute or federal rule before the opposing party serves an answer or motion for summary judgment, or where all parties who have 26 appeared in the action sign a stipulation of dismissal. Here, Plaintiff cites no applicable 27 statute or rule that would entitle him to such a dismissal. (See ECF Nos. 36, 51.) Further, Defendant filed an answer in this action on April 7, 2020. (See ECF No. 1-2, at 7–10.) 1 Brown v. Baeke, 413 F.3d 1121, 1124 (10th Cir. 2005). The Court therefore dismisses 2 the case with prejudice. 3 Defendant argues that the Court should order Plaintiff to (1) pay Defendant’s 4 costs totaling $835.00, and (2) close his Wells Fargo account pursuant to its authority 5 under Rule 41(a)(2). (ECF No. 41.) Rule 41(a)(2) “vests the district court with 6 discretion to dismiss an action ‘on such terms and conditions as the court deems 7 proper.’” Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002) (quoting Fed. R. Civ. P. 8 41(a)(2)). Indeed, “costs and attorney fees are often imposed upon a plaintiff who is 9 granted a voluntary dismissal under Fed. R. Civ. P. 41(a)(2).” Stevedoring Serv., 889 10 F.2d at 921. However, courts generally do not award costs where an action is 11 voluntarily dismissed with prejudice under Rule 42(a)(2).2 8 James Wm. Moore et al., 12 Moore's Federal Practice § 41.40(10)(d)(viii) (2021) (“An award of costs and 13 attorney’s fees should be denied if the voluntary dismissal is granted with prejudice”); 14 see also Bruce v. Teleflora, LLC, 2014 WL 2710974, at *3 (C.D. Cal. 2014) (listing 15 cases supporting the proposition that “when a lawsuit is voluntarily dismissed with 16 prejudice under [Rule 41(a)(2)], attorneys' fees have almost never been awarded”). 17 While the Ninth Circuit has not addressed the issue of whether costs may be awarded 18 when a case is voluntarily dismissed with prejudice, some courts have held that in such 19 cases, “costs and fees may be imposed under ‘exceptional circumstances’ or pursuant 20 to Fed. R. Civ. P. 11.” Rodriguez v. Service Employees Intern., 2011 WL 483120, at 21 *3 (N.D. Cal. 2011). 22 23 2 The two cases Defendant cites in its opposition brief are inapposite. (See ECF No. 41, at 5.) In Hire A Helper, LLC v. Move Lift, LLC, 2018 WL 1855658 (S.D. Cal 2018), 24 the court declined to grant costs related to a voluntary dismissal without prejudice. In 25 Zora Analytics, LLC v. Sakhamuri, 2014 WL 1289450 (S.D. Cal. 2014), the court granted the defendant’s motion to dismiss for failure to state a claim under Rule 26 12(b)(6), denied the plaintiff’s motion to voluntarily dismiss under Rule 41(a)(2) as 27 moot, and analyzed the defendant’s entitlement to fees under Rule 54, not Rule 41. Neither case supports the proposition that a court may award costs to a defendant when ] Even assuming the Court has the authority to award costs in such circumstances, 2 ||it declines to do so, despite the troubling conduct attributed to Plaintiff. First, as 3 outlined in Defendant’s motion for sanctions, Plaintiff repeatedly employed racially 4 ||abusive and sexist language against defense counsel. (See ECF No. 13-1.) Second, 5 || Plaintiff failed to appear at a Mandatory Settlement Conference and various court- 6 || ordered telephonic motion hearings. (See ECF Nos. 20, 29, 30, 32, 33, 34, 38.) Third, 7 || Plaintiff repeatedly disregarded multiple court orders by directly emailing numerous 8 || documents to the Court. (See ECF Nos. 23, 26, 27, 31, 35, 43, 45.) The Court’s refusal 9 ||to grant costs in this case should not be construed as an endorsement of Plaintiff's 10 ||pattern of inappropriate conduct. However, Magistrate Judge Burkhardt already 11 || properly considered and addressed whether to impose sanctions in this case. (See ECF 12 || Nos. 25, 33.) The Court need not revisit that issue here. Nor does the Court find that 13 || Plaintiff's conduct, improper as it may be, rises to the level of “exceptional 14 || circumstances” warranting deviation from the general practice of not awarding costs in 15 cases voluntarily dismissed with prejudice. 16 Finally, Defendant requests that the Court order Plaintiff to close his Wells Fargo 17 || account as a term of dismissal. (ECF No. 41, at 6.) Defendant cites no authority for 18 such an order. (See id.) Furthermore, Defendant acknowledges it has the power to close 19 || Plaintiff's account without a court order. (/d.) That is the better course here. 20 II. 21 CONCLUSION 22 Good cause appearing, it is hereby ordered that this action is dismissed with 23 || prejudice. 24 IT IS SO ORDERED. 2» 25 ||Dated: April 16, 2021 pr Yn: 6 Hon. Dana M. Sabraw United States Chief District Judge 27 -A-