Opinion
CASE NO. 2:19-CV-00554-RSM-DWC
08-12-2019
HEXACTA INC, et al., Plaintiffs, v. KEVIN MCALEENAN, et al., Defendants.
REPORT AND RECOMMENDATION Noting Date: August 30, 2019
The District Court has referred this action to United States Magistrate Judge David W. Christel. Presently before the Court is Plaintiffs' Motion to Dismiss. Dkt. 39.
On July 22, 2019, Plaintiffs filed a Notice of Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Dkt. 38. As Defendants had filed an Answer, Plaintiffs could not voluntarily dismiss the action without a court order. See Fed. R. Civ. P. 41(a)(1). The Court provided a notice to Plaintiffs instructing Plaintiffs to submit a redacted version of the Notice of Voluntary Dismissal and to have Defendants sign the redacted version. See Docket. Plaintiffs re-submitted the Notice of Voluntary Dismissal on July 24, 2019. Dkt. 39. The re- submitted Notice of Voluntary Dismissal was not signed by Defendants. See id. The Court, therefore, converted the Notice of Voluntary Dismissal to the now-pending Motion to Dismiss.
Defendants filed a Response to the Motion to Dismiss requesting the case be dismissed with prejudice and without costs or fees to either party. Dkt. 40. On August 8, 2019, Plaintiffs filed a Reply agreeing with Defendants' request that the dismissal be with prejudice, but requesting the Court decline to restrict Plaintiffs from seeking costs and fees under the Equal Access to Justice Act ("EAJA"). Dkt. 41.
As the request for dismissal was initiated by Plaintiffs pursuant to Rule 41(a)(1)(A)(i) and agreed to by Defendants, the Court finds the parties have effectively filed a stipulated dismissal under Rule 41(a)(1)(A)(ii). The parties, however, disagree regarding whether this case should be dismissed without costs or fees to either party. See Dkt. 40, 41. While the Court makes no determination regarding the merits of any fee request, the Court finds Plaintiff should have an opportunity to seek costs and fees as permitted by law. See Turner v. Vilsack, 2016 WL 1048893, at *3 (D. Or. Mar. 14, 2016) (awarding attorney's fees under the EAJA after the parties filed a stipulated dismissal).
Therefore, the undersigned recommends the Motion to Dismiss (Dkt. 39) be granted and this case be dismissed with prejudice pursuant to Rule 41(a). The undersigned further recommends the Court decline to restrict Plaintiffs from seeking costs and fees as permitted by law. As the parties have effectively filed a stipulated dismissal, the undersigned recommends judgment not be entered for either party. See Porter v. Spencer, 2018 WL 6198468, at *1 (E.D. Cal. Aug. 13, 2018).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on August 30, 2019, as noted in the caption.
Dated this 12th day of August, 2019.
/s/_________
David W. Christel
United States Magistrate Judge