Opinion
3:21-cv-766-L-BGS
12-07-2021
GARY BUCHHEIM AND BRYAN FLOAT, Plaintiffs, v. DENNIS FENTON, et al., Defendants, and ANAPTYSBIO, INC., Nominal Defendant.
ORDER ON JOINT MOTION TO DISMISS ACTION
HON M; JAMES LOREZ, UNITED STATES DISTRICT JUDGE.
Pending before the Court is the parties' joint motion to dismiss this derivative action without prejudice. (ECF 30).
Under Federal Rule of Civil Procedure 23.1(c), “notice of a proposed . . . voluntary dismissal . . . must be given to shareholders or members in the manner that the court orders.” (emphasis added).
Here, the parties assert notice “is unnecessary because the stipulated dismissal is without prejudice; no compensation or consideration in any form has passed directly or indirectly from any of the Defendants to Plaintiffs or Plaintiffs' counsel; no promise to give any such compensation or consideration has been made; and the dismissal is without prejudice to the ability of AnaptysBio or other AnaptysBio shareholders to pursue claims.” (ECF 30).
But the parties failed to cite any legal authority as to dispensing with Rule 23.1's notice requirement. Their support for the request is also merely statements in a motion, not evidence (e.g., declarations). See, e.g., U.S. v. Zermeno, 66 F.3d 1058, 1062, (9th Cir. 1995) (assertions made in pleadings are not considered evidence); Singh v. I.N.S., 213 F.3d 1050, 1054 n.8 (9th Cir. 2000) (“statements in motions are not evidence and are therefore not entitled to evidentiary weight.”) (internal quotation marks and citation omitted). And they failed to show the proposed dismissal will not prejudice other shareholders (e.g., statute of limitations). See Cramer v. Gen. Tel. & Elecs. Corp., 582 F.2d 259, 269 (3d Cir. 1978).
For the above reasons, the Court DENIES the joint motion WITHOUT PREJUDICE. Any subsequent request for dismissal without notice to shareholders must provide the relevant legal authority, analysis, and support.
IT IS SO ORDERED.