Opinion
Case No. C-05-3147 MMC.
September 21, 2005
David S. Secrest, Esq. [State Bar # 142299], Law Offices of David S. Secrest, A Professional Corporation, El Granada, CA, Attorney for Plaintiff Stephen Williams.
Robert Joseph Pia, Esq., Law Offices of Robert Pia, Attorneys for Defendants, SBC Communications, Inc., and Marilyn Moomau.
STIPULATION OF DISMISSAL OF FIFTH AND SIXTH CAUSES OF ACTION
IT IS HEREBY STIPULATED by and between the parties to this action, through their designated counsel, that the following causes of action be and hereby are dismissed pursuant to FRCP 41(a)(1), without any prejudice to the right by Defendants SBC Communications, Inc., and Marilyn Moomau to oppose any Motion for Remand by Plaintiff.
Where plaintiff wants to drop certain claims but not to dismiss any defendant, the proper procedure is to amend the complaint. FRCP 15(a); Ethridge v. Harbor House Restaurant (9th Cir., 1988), 861 F2d 1389, 1392. "Alternatively, the parties may agree that certain claims will not be pursued or will be dismissed; or that the pleadings be amended to eliminate such claims. Such agreement is no doubt enforceable even without a formal motion to amend or dismiss." Schwarzer, Tashima, and Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (Rutter Group, 2004); §§ 16:311-312.
1. Plaintiff's Fifth Cause of Action for Interference/Restraint/Denial of Rights under the Family Medical Leave Act ("FMLA") [ 29 USC § 2615(a)(1); 29 CFR § 825.220(a)(1)]; and
2. Plaintiff's Sixth Cause of Action for Discrimination, Discharge and Retaliation in Violation of the FMLA [ 29 USC § 2615(a)(2); 29 CFR § 825.220(a)(2), (3), (c)].
IT IS SO ORDERED.