Opinion
CV-23-00471-PHX-DMF
08-15-2023
Juan Juventino Garcia Garcia, Plaintiff, v. Exotic Fleet Services LLC, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
On March 17, 2023, Plaintiff Juan Juventino Garcia Garcia (“Plaintiff”) filed a Complaint naming three Defendants. (Doc. 1) On May 2, 2023, Defendant Arturo Acosta filed an answer. (Doc. 14) On July 20, 2023, Plaintiff filed a notice of settlement. (Doc. 24) On August 12, 2023, Plaintiff filed a Notice of Voluntary Dismissal With Prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). (Doc. 26)
For the reasons set forth below, it is recommended that this matter be dismissed with prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
All Defendants have not yet appeared and consented to Magistrate Judge Jurisdiction. Before appearances and consent of defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
I. PROCEDURAL HISTORY AND POSTURE
On March 17, 2023, Plaintiff filed a Complaint naming as Defendants Arturo Acosta (“Defendant Acosta”), Jane Doe Acosta, and Exotic Fleet Services LLC (Doc. 1) and paid the filing fee (Doc. 3). Plaintiff's Complaint asserted one claim under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (Doc. 1 at 10-12) On April 3, 2023, Plaintiff consented to proceed before a United States Magistrate Judge. (Doc. 10) On April 4, 2023, Proofs of Service were filed regarding Defendants Acosta, Jane Doe Acosta, and Exotic Fleet Services LLC. (Docs. 7, 8, 9)
On April 25, 2023, Plaintiff filed an Application for Entry of Default against all Defendants (Doc. 12), and on April 26, 2023, the Clerk of Court entered default against all Defendants (Doc. 13).
On May 2, 2023, Defendant Acosta filed a letter, which the Clerk of Court docketed as an answer to the Complaint. (Doc. 14) On May 12, 2023, Defendant Acosta consented to proceed before a United States Magistrate Judge. (Doc. 17)
The letter was originally filed as an answer of Defendant Acosta and Defendant Exotic Fleet Services LLC, but the Court directed the docket be amended to reflect that the filing was on behalf of only Defendant Acosta, who is not authorized to represent Defendant Exotic Fleet Services LLC in this matter. (Doc. 19) The Court also ordered that “that within fourteen (14) days from the date of this Order, Defendant Arturo Acosta shall file an amended answer pertaining to him alone and no other party in compliance with all the applicable rules, including the Federal Rules of Civil Procedure and this District's Local Rules of Practice.” (Id. at 4) On July 6, 2023, the Court again ordered Defendant Acosta to file an amended answer within fourteen days or show cause for his failure to do so. (Doc. 22) Defendant Acosta did not file an amended answer within fourteen days of the Court's July 6, 2023, Order. Defendants Jane Doe Acosta and Exotic Fleet Services LLC have not filed an answer or otherwise appeared in this matter.
On June 8, 2023, the Court ordered Plaintiff to mail to all Defendants a copy of Plaintiff's Application for Entry of Default and to file a notice with the Court reflecting such mailing. (Doc. 20) On June 13, 2023, Plaintiff filed a notice of mailing in accordance with the Court's June 8, 2023, Order. (Doc. 21)
On July 20, 2023, Plaintiff filed a notice of settlement, stating:
Plaintiff, by and through undersigned counsel, hereby advises the Court that the parties have reached an agreement to resolve this matter. All claims and defenses for Plaintiff and Defendants in this matter have been resolved. The Parties anticipate filing a stipulation for dismissal with prejudice, with each side to bear its own fees and costs, except as provided for in the settlement
agreement, within 30 days.(Doc. 24 at 1)
On July 21, 2023, the Court ordered that dismissal paperwork be filed on or before August 21, 2023. (Doc. 25) The Court's July 21, 2023, Order was mailed to Defendant Acosta.
On August 12, 2023, Plaintiff filed a Notice of Voluntary Dismissal With Prejudice, stating:
Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), Plaintiff, Juan Juventino Garcia Garcia, by and through undersigned counsel, gives notice of voluntarily dismissing this action in its entirety, with prejudice, each side to bear its own attorneys' fees and costs.(Doc. 26 at 1) Plaintiff's Notice of Voluntary Dismissal With Prejudice was signed only by Plaintiff and was not signed by Defendant Acosta, who has appeared in this matter.
II. DISMISSAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE (“FED. R. CIV. P.”) 41(a)
Fed. R. Civ. P. 41(a), providing for voluntary dismissal of an action, states:
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the Plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
Despite that Defendant Acosta has appeared and filed a letter as an answer in this matter (Doc. 14), Plaintiff has filed a notice of dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). (Doc. 26) Because Defendant Acosta filed an answer prior to Plaintiff's notice of dismissal, dismissal cannot proceed pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). Further, Defendant Acosta did not sign Plaintiff's Notice of Voluntary Dismissal With Prejudice. (Id.) Because Plaintiff did not file a stipulation of dismissal signed by all parties who have appeared, dismissal also cannot proceed pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii).
In the absence of a stipulation signed by all parties who have appeared, the Court may grant dismissal at the plaintiff's request by court order pursuant to Fed.R.Civ.P. 41(a)(2). The Ninth Circuit has stated that dismissal pursuant to Fed.R.Civ.P. 41(a)(2) should be granted unless a defendant “will suffer some plain legal prejudice as a result of the dismissal.” Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996). Plain legal prejudice includes “prejudice to some legal interest, some legal claim, some legal argument” but does not include “[uncertainty because a dispute remains unresolved” or any expense incurred defending a lawsuit. Id. In determining whether dismissal pursuant to Fed.R.Civ.P. 41(a)(2) is appropriate, this Court considers “(1) whether to allow dismissal; (2) whether the dismissal should be with or without prejudice; and, (3) what terms and conditions, if any, should be imposed.” Woytenko v. Ochoa, 2021 WL 763879, at *5 (D. Ariz. Feb. 26, 2021).
As for the first determination, whether this Court should allow dismissal, there is no indication that Defendants will suffer prejudice to a legal interest, claim, or argument as a result of dismissal. See Westlands, 100 F.3d at 96. Plaintiff's Notice of Voluntary Dismissal requests that this matter should be dismissed with prejudice, which is based on a settlement between the parties. (Doc. 26 at 1; Doc. 24) Plaintiff's July 20, 2023, notice of settlement states that the parties have resolved all claims and defenses. (Doc. 24 at 1) If this matter is dismissed with prejudice, Defendant will not suffer uncertainty of an unresolved claim or the threat of future litigation or expense. Because Defendant will not suffer plain legal prejudice, dismissal of this matter is appropriate.
As for the second determination, whether dismissal should be with or without prejudice, Fed.R.Civ.P. provides that dismissal shall be without prejudice unless otherwise stated. Whether to allow dismissal with or without prejudice lies in the Court's discretion. Woytenko, 2021 WL 763879, at *5. The Court may consider “(1) the defendant's effort and expense involved in preparing for trial; (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action; and (3) insufficient explanation of the need to dismiss.” Id. (citations omitted). Plaintiff's Notice of Voluntary Dismissal requests that this matter be dismissed with prejudice. Despite the early stage of this matter and the lack of any indication that Plaintiff has caused excessive delay or has not been diligent in prosecuting this matter, Plaintiff's notice of settlement states that the parties have resolved all claims and defenses (Doc. 24 at 1), and Plaintiff's Notice of Voluntary Dismissal requests to dismiss this matter with prejudice (Doc. 26 at 1). Under these circumstances, dismissal with prejudice is appropriate. See id. (dismissing with prejudice where plaintiffs sought voluntary dismissal with prejudice).
As for the third determination, terms and conditions to be imposed, Plaintiff's Notice of Voluntary Dismissal provides that each side shall bear its own attorneys' fees and costs. (Doc. 26 at 1) Moreover, courts in the Ninth Circuit have found that a court typically should not impose fees and costs upon voluntary dismissal of a matter with prejudice. Woytenko, 2021 WL 763879, at *6 (collecting cases). Because dismissal with prejudice is appropriate, there is no risk of further litigation, and Plaintiff has not exercised a lack of diligence in filing the Notice of Voluntary Dismissal With Prejudice. See Ivchenko v. Grant, 2020 WL 3488581, at *2 (D. Ariz. June 26, 2020) (declining to award costs and fees where matter was dismissed with prejudice and plaintiff was diligent). As such, it is appropriate for each side to bear its own attorneys' fees and costs as provided in Plaintiff's Notice of Voluntary Dismissal.
III. CONCLUSION
Because Plaintiff filed his Notice of Voluntary Dismissal With Prejudice following Defendant Acosta's filing of an answer in this matter, and because Plaintiff did not file a stipulation of voluntary dismissal signed by all parties who have appeared in this matter, dismissal is not appropriate pursuant to Fed.R.Civ.P. 41(a)(1). It is nevertheless recommended that this matter be dismissed with prejudice pursuant to Fed.R.Civ.P. 41(a)(2).
Accordingly, IT IS RECOMMENDED that this matter be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.