Opinion
Case No. 1:17-cv-00151-SAB
08-10-2017
ELVIA ARACELA MELENDEZ-SALAZAR, Plaintiff, v. GOLDEN EMPIRE TOWING, INC., et al., Defendants.
ORDER GRANTING JOINT MOTION TO DISMISS DEFENDANT AOC ADJUSTERS FRESNO, LTD WITH PREJUDICE AND VACATING AUGUST 23, 2017 HEARING (ECF No. 21)
This action was filed on February 3, 2017. On July 25, 2017, Plaintiff filed a joint motion to dismiss Defendant AOC Adjusters Fresno, Ltd. only. (ECF No. 21.)
Rule 41 of the Federal Rules of Civil Procedure governs dismissal in this action. "[U]nder Rule 41(a)(1)(A)(i), 'a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.' " Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). Under Rule 41(a)(1)(A)(ii), a party may dismiss an action without a court order by stipulation signed by all parties who have appeared.
Defendant Golden Empire Towing, Inc. has filed an answer but did not sign the motion to dismiss Defendant AOC Adjusters Fresno, Ltd. Therefore, on July 25, 2017, Defendant Golden Empire Towing, Inc. was ordered to file an opposition or statement of non-opposition to the motion to dismiss on or before August 9, 2017. Defendant Golden Empire Towing, Inc. did not respond to the July 25, 2017 order.
Pursuant to the Local Rule, a party who fails to file a timely opposition is not entitled to be heard in opposition to the motion at oral argument. L.R. 230(c). Therefore, the Court shall vacate the hearing on the joint motion to dismiss; and the Court shall construe Golden Empire Towing's lack of response as a non-opposition to the motion to dismiss.
Rule 41(a) allows a party to dismiss some or all of the defendants or claims in an action through a Rule 41(a) notice. Wilson, 111 F.3d at 692. Pursuant to Rule 41(a)(2) an action may be dismissed on court order by terms the court considers proper. A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982). "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." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). The Ninth Circuit has held that legal prejudice means prejudice to "some legal interest, some legal claim, some legal argument." Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996).
Here, Plaintiff and Defendant AOC Adjusters Fresno, Ltd. have jointly moved to dismiss this action as to Defendant AOC Adjusters. Defendant Golden Empire Towing, Inc. has not identified any prejudice that will result due to the dismissal. Accordingly, the Court shall grant the motion to dismiss.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The hearing on Plaintiff's motion to dismiss set for August 23, 2017, at 10:00 a.m. is VACATED;IT IS SO ORDERED. Dated: August 10 , 2017
2. The joint motion to dismiss AOC Adjusters Fresno, Ltd. is GRANTED;
3. Defendant AOC Adjusters Fresno, Ltd. is dismissed from this action with prejudice; and
4. This action shall proceed against Defendant Golden Empire Towing, Inc.
/s/_________
UNITED STATES MAGISTRATE JUDGE