Opinion
Case Nos. C04-110JLR, C04-112JLR.
January 9, 2006
ORDER
The court has received the motion of Howard Johnson International, Inc. ("HJI") to voluntarily dismiss all of its remaining claims in this consolidation action (Dkt. # 33).
The court finds the request proper under Fed.R.Civ.P. 41(a)(2). The court notes that this action is stayed as to the two individual Defendants, Lawrence Horowitz and Andre Tatibouet, because both have filed for bankruptcy protection. Nonetheless, a bankruptcy stay does not prohibit the court from giving effect to a voluntary dismissal of claims against a bankrupt defendant. Independent Union of Flight Attendants v. Pan Am. World Airways, Inc., 966 F.2d 457, 458-59 (9th Cir. 1992) (holding that a court may effect dismissal that is consistent with the aims of 11 U.S.C. § 362(a)). The court also notes that the individual Defendants have no affirmative claims in this action. Only the entity Defendants filed counterclaims in this action, and the court dismissed those counterclaims in prior orders. See Case No. 04-112, Dkt. # 9 (counterclaim by 85 Fifth Street Associates, LLC); Case No. 04-110, Dkt. # 8 (counterclaim by 85 Fifth Street Associates, LLC), Dkt. # 22 (dismissing counterclaim in No. 04-110), Dkt. # 28 (dismissing counterclaim in No. 04-112).
Thus, Plaintiff's motion for voluntary dismissal leaves no claims remaining in this action. The court therefore GRANTS the motion for voluntary dismissal (Dkt. # 33), and directs the clerk to DISMISS this consolidated action.