Pfitzer v. Beneficial California, Inc.

Full title: PAMELA PFITZER, aka PAMELA EBERT, Plaintiff, v. BENEFICIAL CALIFORNIA…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Dec 31, 2013

2:09-cv-02634-MCE-AC (E.D. Cal. Dec. 31, 2013)

Opinion

PAMELA PFITZER, aka PAMELA EBERT, Plaintiff, v. BENEFICIAL CALIFORNIA, INC., ET. AL., Defendant. No. 2:09-cv-02634-MCE-AC United States District Court, E.D. California. December 31, 2013

          ORDER

          MORRISON C. ENGLAND, Jr., Chief District Judge.

         On December 23, 2013, Plaintiff Pamela Pfitzer, ("Plaintiff"), filed a notice of voluntary dismissal pursuant to Federal Rules of Civil Procedure 41(a) ¹ as to all claims in this action without prejudice as to Defendants Mann Bracken LLP, ("Mann Bracken"), and Cheryl E. Rose, Receiver for Mann Bracken LLC, ("Receiver"). Notice, Dec. 23, 2013, ECF No. 53.² Under Rule 41(a)(1)(A)(i), a plaintiff may 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. Fed.R.Civ.P. 41.

1 All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure unless otherwise stated.

2 The Court dismissed all claims against Defendant Beneficial California, Inc. in this matter on 6/11/2010. ECF No. 36, 39. Accordingly, the only remaining Defendants in this action are Mann Bracken and its Receiver. See ECF No. 52.

         On December 27, 2013, in response to this Court's Order to Show Cause (ECF Nos. 51, 52), the Receiver informed the Court that "[d]espite having a good faith defense, the Receiver has not retained local counsel to defend the action since there are insufficient funds to pay all claims in full AND the Plaintiff's claim would be addressed in the Receivership proceeding after a claim is filed." Response, Dec. 27, 2013, ECF No. 55 (emphasis in original). Although the Receiver asserted that the Receivership Estate of Mann Bracken may have a good faith defense to Plaintiff's claim, neither Mann Bracken LLP nor its Receiver filed an answer or a motion for summary judgment in response to Plaintiff's Complaint. Id .; see ECF Nos. 52, 53, 55. Therefore, this Court may dismiss this action pursuant to Rule 41(a)(1)(A)(i).

         In light of Plaintiff's request for voluntary dismissal (ECF No. 53), on the Court's own motion pursuant to Rule 41(a)(1)(A)(i), this Court DISMISSES without prejudice Plaintiff's claim against Mann Bracken and its Receiver. The Clerk of the Court is directed to CLOSE this case.

         IT IS SO ORDERED.