J & J Sports Productions Incorporated v. Velazquez et al

Filing 16

ORDER rejecting 15 Stipulation of Dismissal: An appropriate stipulation of dismissal or an appropriate notice of voluntary dismissal shall be filed no later than 10/31/2013. See order for details. Signed by Senior Judge Paul G Rosenblatt on 10/4/2013. (LMR)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

J & J Sports Productions, Inc.,
Plaintiff,

11
12
13
14

vs.
Martin Garcia Velazquez, et al.,
Defendants.

15

)
)
)
)
)
)
)
)
)
)
)

No. CV-13-01123-PHX-PGR
ORDER

16

Pending before the Court is the parties’ Stipulation of Dismissal of Plaintiff’s

17

Complaint Against Defendants Martin Garcia Velazquez, individually and d/b/a Los

18

Tucanes Mexican Food; and Los Tucanes Mexican Food, LLC, an unknown

19

business entity d/b/a Los Tucanes Mexican Food (Doc. 15). Having considered the

20

stipulation, which the parties state is made pursuant to Fed.R.Civ.P. 41(a)(1), the

21

Court finds that the stipulation is insufficient to automatically effect the dismissal of

22

this action pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii) because it specifically conditions

23

its effectiveness on a subsequent occurrence. See Anago Franchising, Inc. v. Shaz,

24

LLC, 677 F.3d 1272 (11th Cir.2012).

25

The stipulation states that the dismissal of the action is without prejudice

26

“subject to the Court’s jurisdiction to enforce the settlement agreement reached by

1

the Parties[,]” which retention of jurisdiction is apparently needed because the

2

parties also stipulated that the dismissal would be with prejudice if “no Party

3

referenced above has filed a motion to reopen this action by August 20, 2014[.]” The

4

Court finds this to be unacceptable because Rule 41(a)(1) does not permit parties

5

to reopen an existing action after it has been dismissed, and because the stipulation

6

provides no reason why the Court should retain jurisdiction over the parties’

7

settlement agreement and the Court, in the exercise of its discretion, declines to do

8

so.1 See Arata v. Nu Skin International, Inc., 96 F.3d 1265, 1269 (9th Cir.1996)

9

(“[T]he mere fact that the parties agree that the court should exercising continuing

10

jurisdiction [over a settlement agreement] is not binding on the court.”)

11

Furthermore, the stipulation is in any case ineffective to effectuate the

12

dismissal of defendant Los Tucanes Mexican Food, LLC because the stipulation was

13

signed on that defendant’s behalf by defendant Martin Garcia Velazquez, a non-

14

attorney, as the company’s “authorized representative” notwithstanding that it is well-

15

established that a non-attorney may not appear in federal court on behalf of a limited

16

liability company. See Lattanzio v. COMTA, 481 F.3d 137, 140 (2nd Cir. 2007) (Court

17

held that a limited liability company, even one solely-owned, may appear in federal

18

court only through a licensed attorney.) Therefore,

19

IT IS ORDERED that the parties’ Stipulation of Dismissal of Plaintiff’s

20

Complaint Against Defendants Martin Garcia Velazquez, individually and d/b/a Los

21

Tucanes Mexican Food; and Los Tucanes Mexican Food, LLC, an unknown

22

business entity d/b/a Los Tucanes Mexican Food (Doc. 15) is rejected by the Court

23
24
25
26

1

While the Court realizes that it has accepted this type of stipulation
provision in the past from the plaintiff’s counsel without comment, the Court is no
longer willing to do so.
-2-

1

without prejudice.

2

IT IS FURTHER ORDERED that an appropriate stipulation of dismissal or an

3

appropriate notice of voluntary dismissal shall be filed no later than October 31,

4

2013.

5

DATED this 4th day of October, 2013.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

-3-