Shipping And Transit, Llc v. Hall Enterprises, Inc.

NOTICE OF MOTION AND MOTION to Dismiss Case Pursuant to FRCP 41

C.D. Cal.November 11, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFF’S MOTION FOR ORDER DISMISSING THE CASE Rasheed McWilliams (SBN 281832) Rasheed@cotmanip.com Daniel C. Cotman (CBN 218315) dan@cotmanip.com Obi I. Iloputaife (SBN 192271) obi@cotmanip.com COTMAN IP LAW GROUP, PLC 35 Hugus Alley, Suite 210 Pasadena, CA 91103 (626) 405-1413/FAX: (626) 316-7577 Attorneys for Plaintiff SHIPPING & TRANSMIT LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SHIPPING & TRANSIT LLC, Plaintiff, v. HALL ENTERPRISES, INC. d/b/a LOGISTICS PLANNING SERVICES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-06535-AG-AFM NOTICE OF MOTION AND MOTION FOR ORDER DISMISSING THE CASE WITH PREJUDICE PURSUANT TO FRCP 41(a)(2) Date: December 12, 2016 Time: 10:00 a.m. Courtroom: 10D JUDGE: HON. ANDREW J. GUILFORD Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 1 of 8 Page ID #:223 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff's Motion for Order Dismissing Case TO PLAINTIFF AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on Monday, December 12, 2016, at 10:00 a.m. or as soon thereafter as the matter may be heard in Courtroom 10D of the above- identified Court, located at 411 West Fourth Street, Santa Ana, California, Plaintiff, Shipping & Transit, LLC, will and hereby moves this Court for an order dismissing this case in its entirety, with prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). This Motion is based on this Notice, the Memorandum of Points and Authorities herein, the pleadings on file in this action, and such further argument and evidence as the Court may entertain. Dated: November 11, 2016 COTMAN IP LAW GROUP, PLC s/Rasheed M. McWilliams By_______________________ Rasheed M. McWilliams Daniel C. Cotman Obi Iloputaife Counsel for Plaintiff, Shipping & Transit, LLC Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 2 of 8 Page ID #:224 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i PLAINTIFF’S MOTION FOR ORDER DISMISSING THE CASE TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES ................................................ 1 I. INTRODUCTION ................................................................................................... 1 II. PROCEDURAL BACKGROUND ...................................................................... 1 III. ARGUMENT........................................................................................................ 1 IV. CONCLUSION .................................................................................................... 4 Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 3 of 8 Page ID #:225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Plaintiff's Motion for Order Dismissing Case TABLE OF AUTHORITIES CASES Maxum Indemnity Insurance Company v. A-1 All American Roofing Co., 299 F. App’x 664 (9th Cir. 2008) ......................................................................................... 3 Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) ................................................. 2, 3 Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989) ...... 2 Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988) .......................................... 4 Westlands Water Dist. v. United States, 100 F.3d 94, 96-97 (9th Cir. 1996) ............ 2, 3 RULES Federal Rule of Civil Procedure Rule 41(a)(2) .......................................................... 1, 2 Federal Rule of Civil Procedure Rule 41(a)(1) .............................................................. 1 Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 4 of 8 Page ID #:226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFF’S MOTION FOR ORDER DISMISSING THE CASE MEMOMRANDUM OF POINTS AND AUTHORITIES Plaintiff, Shipping and Transit, LLC (“S&T” or “Plaintiff”), by its undersigned counsel, hereby moves this Court for an order dismissing the case in its entirety, with prejudice pursuant to Federal Rule of Civil Procedure Rule 41(a)(2). I. INTRODUCTION This Court should grant Plaintiff’s motion to voluntarily dismiss this entire action with prejudice pursuant to Federal Rule of Civil Procedure Rule (“FRCP”) 41(a)(2) because the Defendant cannot prove that it will suffer legal prejudice based on the Court granting Plaintiff’s motion. II. PROCEDURAL BACKGROUND Plaintiff filed its Complaint on August 20, 2016. [Dkt. No. 1.] Defendant filed its Answer to the Complaint and its Motion for Judgment on the Pleading on November 2, 2016. [Dkt. Nos. 11 and 13.] The parties met and conferred on this motion pursuant to Local Rule 7.3 on November 10, 2016, but were unable to reach agreement on a stipulation for dismissal and Defendant indicated that it would oppose the motion. III. ARGUMENT Rule 41(a)(1) of the Federal Rules of Civil Procedure permits a plaintiff to dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. When, as in the present case, an opposing party has served an answer, a plaintiff may voluntarily dismiss an action only by court order pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Rule 41(a)(2) states: “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.” Fed. R. Civ. P. 41(a)(2). “A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the district court’s sound discretion[.]” Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989). “The purpose of Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 5 of 8 Page ID #:227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff's Motion for Order Dismissing Case the rule is to permit a plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced, or unfairly affected by dismissal.” Id. (citations omitted). Therefore, “[a] district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” See Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citations omitted). “Legal prejudice” is “prejudice to some legal interest, some legal claim, [or] some legal argument.” Id. at 976 (internal quotation marks and citation omitted). “Uncertainty because a dispute remains unresolved” or “the threat of future litigation which causes uncertainty” does not constitute plain legal prejudice.” Westlands Water Dist. v. United States, 100 F.3d 94, 96-97 (9th Cir. 1996). “Also, plain legal prejudice does not result merely because the defendant will be inconvenienced by having to defend in another forum or where a plaintiff would gain a tactical advantage by that dismissal.” Smith, 263 F.3d at 976. In the present case, this Court should dismiss the entire action with prejudice pursuant to FRCP 41(a)(2) because Defendant cannot prove that it will suffer legal prejudice. There are a limited number of areas of potential prejudice that Defendant can assert in the present case, including (1) the expense of the litigation; (2) damage to Defendant’s reputation and (3) Plaintiff is only dismissing this action to avoid potentially losing on Defendant’s Motion for Judgment on the Pleadings, unfortunately for Defendant, each of these potential areas of prejudice have been held not to be prejudicial under Ninth Circuit precedent. The Ninth Circuit has “explicitly stated that the expense incurred in defending against a lawsuit does not amount to legal prejudice.” Westlands, 100 F.3d at 97. Further, damage to one’s reputation is not ordinarily connected to a legal interest, claim, or argument, and is not so connected in the present case. Smith, 263 F.3d at 976 (holding that legal prejudice refers to “prejudice to some legal interest, some legal Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 6 of 8 Page ID #:228 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff's Motion for Order Dismissing Case claim, [or] some legal argument.”). Any alleged damage to Defendant’s reputation may well be ameliorated by Plaintiff’s voluntary dismissal of this action. Defendant’s only other possible contention in support of its argument that Plaintiff lacks a valid basis for seeking dismissal is that Plaintiff is only seeking dismissal to avoid having its patent invalidated based on Defendant’s Motion for Judgement on the Pleadings. Maxum Indemnity Insurance Company v. A-1 All American Roofing Co., 299 F. App’x 664 (9th Cir. 2008). Defendant’s reliance on Maxum would be misplaced. First, Maxum states only that a district court “may consider whether the plaintiff is requesting a voluntary dismissal only to avoid a near- certain adverse ruling.” Id. at 666 (emphasis added). The case does not require a court to deny voluntary dismissal if Plaintiff may intend, through voluntary dismissal, to avoid an adverse ruling. Second, the circumstances present in Maxum that warranted reliance upon a desire to avoid an adverse ruling are not present in this case. In Maxum, the district court had indicated prior to the motion for voluntary dismissal how it intended to rule on the underlying claims. Id. In this case, the Court has given no such indication. The distinction between this case and Maxum is confirmed by the case on which Maxum relies, in which a magistrate judge issued his report and recommendation on the underlying claims before a motion for voluntary dismissal was filed. See Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988). With no such circumstance present in this case, this court should not be persuaded that Plaintiff’s motion for dismissal must or should be denied based on a desire to avoid “a near-certain adverse ruling.”\ /// /// /// Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 7 of 8 Page ID #:229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Plaintiff's Motion for Order Dismissing Case IV. CONCLUSION Based on the above, since Defendant cannot prove that it will be legally prejudiced by the Court’s dismissal of the entire action with prejudice, this Court should grant Plaintiff’s motion. Respectfully submitted, DATED: November 11, 2016 COTMAN IP LAW GROUP, PLC s/Rasheed M. McWilliams By:_ ___________________________ Rasheed M. McWilliams Daniel C. Cotman Obi I. Iloputaife COTMAN IP LAW GROUP, PLC 35 Hugus Alley, Suite 210 Pasadena, CA 91103 Telephone: (626) 405-1413 Facsimile: (626) 316-7577 Attorneys for Plaintiff Shipping & Transit LLC Case 2:16-cv-06535-AG-AFM Document 15 Filed 11/11/16 Page 8 of 8 Page ID #:230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SHIPPING & TRANSIT LLC, Plaintiff, v. HALL ENTERPRISES, INC. d/b/a LOGISTICS PLANNING SERVICES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-06535-AG-AFM [PROPOSED] ORDER GRANTING MOTION FOR ORDER DISMISSING THE CASE WITH PREJUDICE PURSUANT TO FRCP 41(a)(2) Date: December 12, 2016 Time: 10:00 a.m. Courtroom: 10D Judge: Hon. Andrew J. Guilford Case 2:16-cv-06535-AG-AFM Document 15-1 Filed 11/11/16 Page 1 of 2 Page ID #:231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER This Motion for Order Dismissing the Case In Its Entirety, with prejudice, filed by Plaintiff, Shipping and Transit, LLC (“S&T” or “Plaintiff”) in this matter came on regularly for hearing on December 12, 2016. Having considered the moving and opposition papers, arguments, and all other matters presented to the Court, the Court finds that in the best interest of the parties, the entire case should be dismissed with prejudice. IT IS HEREBY ORDERED that the Motion for Order Dismissing the Case in Its Entirety With Prejudice filed by Plaintiff is GRANTED. The Complaint in this case is ordered dismissed with prejudice. Each party to bear its own attorneys’ fees and costs. IT IS SO ORDERED. Dated: ______________, 2016. ______________________________ The Honorable Andrew J. Guilford United States District Judge Case 2:16-cv-06535-AG-AFM Document 15-1 Filed 11/11/16 Page 2 of 2 Page ID #:232