General Electric Company, et al. v. Wilkins

Filing 574

ORDER to DISMISS With Prejudice Certain Claims, signed by District Judge Lawrence J. O'Neill on 7/31/2012. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GENERAL ELECTRIC COMPANY,
et.,

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CASE NO. CV F 10-0674 LJO JLT

Plaintiffs,

ORDER TO DISMISS WITH PREJUDICE
CERTAIN CLAIMS

vs.
THOMAS WILKINS,

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Defendant.

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/

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AND COUNTERACTION.

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___________________________________/

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On June 28, 2012, plaintiffs General Electric and GE Wind Energy LLC (collectively referred

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to as “GE”) filed a Notice of Abandonment of Certain Asserted Claims (Doc. 383). In the notice, GE

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explained that although the parties were unable reach a stipulation on the issue, GE wished to abandon

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with prejudice its contract claims against defendant Thomas Wilkins (“Mr. Wilkins”). Specifically, GE

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notified the Court of its intent to abandon the following claims with prejudice:

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a.

First Claim for Relief for Breach of Contract as to ‘985 Patent–C&I Agreement;

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b.

Second Claim for Relief for Breach of Contract as to ‘985 Patent–EIPI Agreement;

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c.

Fourth Claim for Relief for Breach of Contract as to the ‘565 Patent–C&I Agreement;

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d.

Fifth Claim for Relief for Breach of Contract as to the ‘565 Patent–EIPI Agreement;
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e.

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Seventh Claim for Relief for Declaratory Relief–Appointment of Attorney-in-Fact under
C&I Agreement; and

f.

Eighth Claim for Relief for Declaratory Relief–Rights to Invention During Employment,

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but only to the extent this claim for relief is based on Paragraphs 95 or 96 of the

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Amendment Complaint; and

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g.

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GE’s corresponding claims for compensatory damages as described in its Payer for Relief
Paragraphs H and I.

GE indicated that it intends to pursue its remaining claims at trial.

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Mr. Wilkins filed a response to GE’s notice of abandonment of claims on July 20, 2012 (Doc.

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564). Mr. Wilkins did not dispute that GE’s abandoned claims should be removed from the case. The

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only dispute was how that removal ought to be accomplished. Mr. Wilkins argues that an order of

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dismissal with prejudice pursuant to Fed. R. Civ. P. 41(b) is the appropriate means to remove the

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abandoned claims rather than GE’s notice of abandonment of the claims. Alternatively, Mr. Wilkins

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asserts that GE must amend its complaint to withdraw the claims pursuant to Fed. R. Civ. P. 15. Mr.

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Wilkins submits, among other things, a proposed order dismissing the abandoned claims with prejudice.

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GE filed a reply to Mr. Wilkins’ response on July 30, 2012. In the reply, GE notes that it does

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not oppose entry of dismissal of the abandoned claims with prejudice. Again, GE disputes the

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mechanism to effectuate that dismissal. GE argues that Fed. R. Civ. P. 41(b) is inappropriate, and

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requests this Court to deny Mr. Wilkins’ proposed order of dismissal pursuant to Fed. R. Civ. P. 41(b).

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GE submits a revised proposed order dismissing the abandoned claims with prejudice. GE’s proposed

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order is nearly identical to that submitted by Mr. Wilkins, with the exception of the mention of Fed. R.

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Civ. P. 41(b).

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This Court agrees with GE Fed. R. Civ. P. 41(b) in an inappropriate procedural mechanism to

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dismiss the contract claims it wishes to abandon with prejudice. Fed. R. Civ. P. 41(b) provides that “a

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defendant may move to dismiss the action or any claim against it” if the “plaintiff fails to prosecute” any

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claims asserted. Pursuant to this rule, the Court may dismiss either on the defendant’s motion or sua

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sponte. See Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 (1962). Involuntary dismissal based

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on this rule, however, should be predicated on either the plaintiff’s failure to prosecute its claims or
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failure to obey court orders. Neither circumstance presents itself in this action. To the contrary, GE has

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vigorously prosecuted its contract claims in this action. GE successfully filed a temporary restraining

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order based, in part, on the strength of its contract claims at the time that motion was filed. Moreover,

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although GE has expressed its intention to abandon these claims at this stage in the litigation, Fed. R.

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Civ. P. 41 is further inappropriate because it is an involuntary dismissal. Here, GE is seeking to dismiss

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these claims voluntarily. Accordingly, this Court finds that Fed. R. Civ. P. 41(b) is inapplicable to

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dismiss GE’s abandoned claims.

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Undisputedly, Mr. Wilkins and GE both parties both agree to a dismissal of the contract claims

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with prejudice. Based on this Court’s reading of these parties’ responses, this Court construes these

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responses as a stipulation to dismiss these claims with prejudice. Based on this agreement, and for good

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cause appearing, this Court DISMISSES with PREJUDICE the following claims:

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a.

First Claim for Relief for Breach of Contract as to ‘985 Patent–C&I Agreement;

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b.

Second Claim for Relief for Breach of Contract as to ‘985 Patent–EIPI Agreement;

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c.

Fourth Claim for Relief for Breach of Contract as to the ‘565 Patent–C&I Agreement;

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d.

Fifth Claim for Relief for Breach of Contract as to the ‘565 Patent–EIPI Agreement;

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e.

Seventh Claim for Relief for Declaratory Relief–Appointment of Attorney-in-Fact under

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C&I Agreement; and
f.

Eighth Claim for Relief for Declaratory Relief–Rights to Invention During Employment,

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but only to the extent this claim for relief is based on Paragraphs 95 or 96 of the

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Amendment Complaint; and

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g.

GE’s corresponding claims for compensatory damages as described in its Payer for Relief
Paragraphs H and I.

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IT IS SO ORDERED.
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Dated:
b9ed48

July 31, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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