Batchan v. Glendale, City of et al

Filing 36

ORDER granting in part 32 plaintiff's Motion for dismissal without prejudice; defendants Westgate Property LLC, Coyotes Newco LLC, Arena Newco LLC, David Burke, and Sam Cornejo are dismissed without prejudice. Pursuant to 35 Stipulation defendants Detective Robert Hawkins and the City of Glendale are dismissed with prejudice. Each party to bear his own costs and attorney's fees. The Clerk shall enter judgment. Signed by Judge Frederick J Martone on 3/19/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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City of Glendale; Westgate Property LLC;)
Coyotes Newco LLC; Arena Newco LLC;)
David Burke; Sam Cornejo; Unknown)
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Hawkins,
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Defendants.
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John W. Batchan,

CV 12-00038-PHX-FJM
ORDER

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The court has before it plaintiff’s motion for dismissal without prejudice (doc. 32) and
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defendants Coyotes Newco LLC and Arena Newco LLC's response (doc. 35). Plaintiff did
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not reply, and the time for replying has expired. A few days after plaintiff filed his motion
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to dismiss, plaintiff and defendants Detective Robert Hawkins and the City of Glendale
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submitted a stipulation to dismiss these two defendants with prejudice (doc. 33).
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Pursuant to Rule 41(a)(2), Fed. R. Civ. P., a court’s dismissal of an action upon
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plaintiff’s request is without prejudice unless otherwise noted. We dismiss "on terms that
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the court considers proper." Id.

We may, but are not required to, impose costs and

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attorney's fees on a plaintiff granted a voluntary dismissal. Stevedoring Servs. of Am. v.
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Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989).
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Coyotes Newco and Arena Newco urge us to award them their costs and attorney's
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fees incurred in defending this action. They argue that plaintiff filed a number of improper

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court filings that forced these defendants to incur unnecessary expenses, and that requiring

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plaintiff to pay fees will remind him that any future litigation should comply with the rules

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of civil procedure. This action is in its infancy. The Rule 16 scheduling conference has not

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been held. There has been no opportunity to test the merits of plaintiff's claims. We note

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that there were no substantive motions filed in this action. Plaintiff seeks dismissal so that

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he may consult a lawyer to assist him with his case. He does not appear to seek dismissal in

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bad faith.

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IT IS ORDERED GRANTING IN PART plaintiff’s motion for dismissal without

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prejudice (doc. 32). IT IS ORDERED DISMISSING defendants Westgate Property LLC,

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Coyotes Newco LLC, Arena Newco LLC, David Burke, and Sam Cornejo without prejudice.

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Pursuant to stipulation (doc. 33), IT IS ORDERED DISMISSING defendants Detective

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Robert Hawkins (named as "Unknown Hawkins" in the complaint) and the City of Glendale

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with prejudice. Each party to bear his own costs and attorney's fees.

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The Clerk shall enter judgment.

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DATED this 19th day of March, 2012.

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