Buchsbaum v. Digital Intelligence Systems, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 BERNARDO BUCHSBAUM, Case No. 20-cv-00706-BAS-AGS 11 individually and on behalf of all others similarly situated, ORDER GRANTING PLAINTIFF’S 12 REQUEST FOR DISMISSAL AND Plaintiffs, DISMISSING ACTION WITHOUT 13 v. PREJUDICE 14 DIGITAL INTELLIGENCE (ECF No. 28) SYSTEMS, LLC, et al., 15 Defendants. 16 17 Plaintiff Bernardo Buchsbaum requests dismissal of this action without prejudice 18 due to this Court’s December 2, 2020 order granting Defendant Digital Intelligence 19 Systems, LLC’s Motion to Compel Arbitration, staying the action, and administratively 20 closing the case. (ECF No. 27.) Defendant has filed a Notice of Non-Opposition to 21 Plaintiff’s request.1 (ECF No. 30.) 22 Because Defendant has filed an Answer to Plaintiff’s Complaint in this case, 23 dismissal is governed by Federal Rule of Civil Procedure 41(a)(2), which provides that an 24 action may only be dismissed at a plaintiff’s request by court order “on terms that the court 25 considers proper.” The purpose of this rule “is to permit a plaintiff to dismiss an action 26 without prejudice so long as the defendant will not be prejudiced . . . or unfairly affected 27 28 1 by dismissal.” Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 2 1989) (citations omitted); Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 146 3 (9th Cir. 1982) (“The very purpose of Rule 41(a)(2) is to allow a District Court, in its 4 discretion, to dismiss an action without prejudice even after responsive pleadings have 5 been filed by the defendant.”). “In exercising its discretion, the Court must make three 6 separate determinations: (1) whether to allow the dismissal at all; (2) whether the dismissal 7 should be with or without prejudice; and (3) what terms and conditions, if any, should be 8 imposed.” Burnette v. Godshall, 828 F. Supp. 1439, 1443 (N.D. Cal. 1993) (citation 9 omitted), aff’d sub nom. Burnette v. Lockheed Missiles & Space Co., 72 F.3d 766 (9th Cir. 10 1995).2 11 Under the first prong, the Court “must consider whether the defendant will suffer 12 some plain legal prejudice as a result of the dismissal.” Hamilton, 679 F.2d at 145. 13 Defendant’s non-opposition to the dismissal vitiates any concern the Court may have 14 regarding prejudice. Similarly, as to the second prong, Plaintiff has requested dismissal 15 without prejudice and Defendant does not oppose this request. Thus, the Court finds 16 dismissal without prejudice appropriate. 17 Third, the Court finds no terms or conditions need be imposed on the dismissal. 18 “Although costs and attorney fees are often imposed upon a plaintiff who is granted a 19 voluntary dismissal under Fed. R. Civ. P. 41(a)(2),” the Ninth Circuit has held that 20 ordering payment of costs and attorney fees is not a prerequisite to granting voluntary 21 dismissal without prejudice under this provision. Stevedoring Servs. of Am., 889 F.2d at 22 23 2 Where class actions are concerned, Federal Rule of Civil Procedure 23(e) requires court approval for the voluntary dismissal of claims of a certified class “or a class proposed to be certified for 24 purposes of settlement[.]” In the Court’s order granting Defendant’s motion to compel the arbitration agreement between the parties, the Court found enforceable the arbitration agreement’s class action 25 waiver. (ECF No. 27.) As such, there are no viable class claims remaining in this action that are subject 26 to dismissal. In any event, Rule 23(e) does not apply where dismissal occurs before class certification. See Fed. R. Civ. P. 23 advisory committee notes to Subdivision (e), Paragraph (1) (“The new rule requires 27 approval only if the claims, issues, or defenses of a certified class are resolved by a settlement, voluntary dismissal, or compromise.”); see also Valenzuela v. Mauser USA, LLC, No. 1:20-CV-00094-NONE- 28 1 |}921. Although the Court ultimately found in Defendant’s favor on the issue of arbitration, 2 || Plaintiff raised legitimate claims and, as such, the Court does not find the imposition of 3 ||fees and costs necessary here. See id. at 922 (finding that where a plaintiff raised a 4 ||substantial legal question that, upon adverse determination, was dispositive of the action, 5 || dismissal without prejudice was appropriate without payment of attorney’s fees); see also 6 Santa Rosa Mem’! Hosp. v. Kent, 688 F. App’x 492, 494 (9th Cir. 2017) (unpublished) 7 || finding no abuse of discretion where district court declined to award costs and fees after 8 || considering “the legitimate factor of the merit of the Plaintiffs’ claims”). 9 Accordingly, the Court LIFTS the stay, GRANTS Plaintiff’s request for dismissal 10 |} under Rule 41(a)(2) and DISMISSES WITHOUT PREJUDICE this action. Each party 11 bear its own costs and attorney fees. The Clerk is instructed to close the case. 12 IT IS SO ORDERED. 13 / et ub [| 14 || DATED: July 6, 2021 Cif ld A! Hishasa □ 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28