Advocates for Individuals with Disabilities Foundation Incorporated v. Weingarten Nostat Incorporated

Filing 11

ORDER denying 10 Motion to Remand to State Court. Signed by Judge David G Campbell on 8/5/2016.(DGC, nvo)

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1 WO 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Advocates for Individuals with Disabilities Foundation, Inc., ORDER 9 10 11 12 No.: CV16-02423-PHX DGC Plaintiff, v. Weingarten Nostat, Inc., Defendants. 13 14 15 Plaintiff has filed a Notice of Voluntary Dismissal of Federal Claims Without 16 Prejudice and Motion to Remand. Doc. 10. Plaintiff purports to use Federal Rule of 17 18 19 Civil Procedure 41(a)(1)(A)(i) to dismiss its federal claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”). With the basis for this Court’s federal question jurisdiction thus eliminated, Plaintiff asks the Court to remand this case to state court. Id. 20 The Ninth Circuit has held that Rule 41(a)(1) “does not allow for piecemeal 21 dismissals.” Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th 22 Cir. 2005). “Instead, withdrawals of individual claims against a given defendant are 23 governed by [Rule] 15, which addresses amendments to pleadings.” 24 25 Id. (citing Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988)); see also Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1513 (9th Cir. 1995) (“[W]e have held that Rule 15, not Rule 41, governs the situation when a party dismisses 26 1 some, but not all, of its claims.”) (citations omitted). Thus, “‘a plaintiff may not use 2 [Rule 41(a)(1)] to dismiss, unilaterally, a single claim from a multi-claim complaint.’” 3 Hells Canyon, 403 F.3d at 687 (quoting Ethridge, 861 F.2d at 1392). Other circuits 4 agree. See id. n.4 (collecting cases); see also S. Gensler, Federal Rules of Civil 5 Procedure, Rules and Commentary, at 1014 (Thomson Reuters 2016) (“[I]f a plaintiff has multiple claims against a defendant and wishes to dismiss one or more – but not all 6 – of those claims, the appropriate procedural mechanism is to file an amended 7 complaint under Rule 15(a).”).1 8 The Court will disregard Plaintiff’s attempted dismissal of its ADA claim and 9 deny its motion to remand. 10 IT IS ORDERED that Plaintiff’s Notice of Voluntary Dismissal of Federal Claims Without Prejudice and Motion to Remand (Doc. 10) is denied. 11 Dated this 5th day of August, 2016. 12 13 14 15 16 17 18 19 20 21 22 23 24 1 The Ninth Circuit has held that Rule 41(a)(1) permits a plaintiff to dismiss all claims 25 against a particular defendant, even if other defendants remain in the case, Pedrina v. Chun, 987 F.2d 608, 609 (9th Cir. 1993), but that is not what Plaintiff attempts to do 26 here. 2

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