J & J Sports Productions, Inc. v. Morales

Filing 29

ORDER RE: Motion for Voluntary Dismissal 27 , signed by Chief Judge Anthony W. Ishii on 3/29/12: Plaintiff's motion to dismiss the second and fourth causes of action in the complaint is GRANTED. The second and fourth causes of action are hereby DISMISSED without prejudice. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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J & J SPORTS PRODUCTIONS, INC.,
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Plaintiff,
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v.
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SANTIAGO MORALES, individually
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and d/b/a DOMINIC’S BAR
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Defendant.
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____________________________________)

1:10-cv-01694-AWI-GSA
ORDER RE: MOTION FOR
VOLUNTARY DISMISSAL
(Doc. 27)

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I. INTRODUCTION
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Plaintiff J & J Sports Productions, Inc., has filed a motion to voluntarily dismiss the second and
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fourth causes of action in the complaint without prejudice pursuant to Federal Rule of Civil
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Procedure 41(a)(2). For reasons discussed below, the motion shall be granted.
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II. FACTS AND PROCEDURAL BACKGROUND
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On September 16, 2010, plaintiff J & J Sports Productions, Inc. (hereinafter referred to as “Plaintiff”)
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filed its complaint against defendant Santiago Morales, individually and d/b/a Dominic’s Bar
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(hereinafter referred to as “Defendant”), asserting four causes of action for violation of 47 U.S.C.
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§ 605, violation of 47 U.S.C. § 553, conversion and violation of California’s Unfair Competition

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Law (UCL), California Business and Professions Code Sections 17200 et seq. On October 22, 2010,

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Defendant answered the complaint, asserting a general denial of the allegations.

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On September 30, 2011, Plaintiff moved for partial summary judgment pursuant to Federal

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Rule of Civil Procedure 56(a), seeking judgment only as to Defendant’s liability for the section 605,

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section 553 and conversion claims. In an order issued December 21, 2011 and filed December 22,

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2011, the Court granted partial summary judgment in favor of Plaintiff and against Defendant as to

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the section 605, section 553 and conversion claims. J & J Sports Productions, Inc. v. Morales, slip

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copy, 2011 WL 6749080 (E.D.Cal. December 22, 2011) .

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On January 26, 2012, Plaintiff filed its motion for an award of damages against Defendant,

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seeking enhanced maximum statutory damages pursuant section 605 as well as damages for

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conversion. Plaintiff further requested permission to file a separate motion for attorneys’ fees and

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costs. On March 8, 2012, the Court issued an order awarding damages in the amounts of $4,400.00

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for the section 605 violation and $2,200.00 for conversion, for total damages of $6,600.00. The

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Court further allowed Plaintiff to file a motion for attorneys’ fees and costs within 30 days. J & J

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Sports Productions, Inc. v. Morales, slip copy, 2012 WL 761670 (E.D.Cal. March 8, 2012).

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On March 13, 2012, Plaintiff filed its motion to dismiss the second and fourth causes of

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action in the complaint – the section 553 and UCL claims, respectively – without prejudice pursuant

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to Federal Rule of Civil Procedure 41(a)(2). Defendant did not file a written opposition.

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III. DISCUSSION

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Federal Rule of Civil Procedure 41(a)(2) provides in pertinent part that where a defendant has served

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an answer or motion for summary judgment, or does not stipulate to a dismissal, “an action may be

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dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.”

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Fed. R. Civ. P. 41(a)(2). “The purpose of the rule is to permit a plaintiff to dismiss an action without

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prejudice so long as the defendant will not be prejudiced, [citation], or unfairly affected by dismissal.

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[Citations.]” Stevedoring Services of America v. Armilla International B.V., 889 F.2d 919, 921 (9th

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Cir. 1989). “Plain legal prejudice, however, does not result simply when defendant faces the

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prospect of a second lawsuit or when plaintiff merely gains some tactical advantage.” Hamilton v.

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Firestone Tire & Rubber Company, Inc., 679 F.2d 143, 145 (9th Cir. 1982). Rather, “[f]actors to

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consider in determining legal prejudice are [¶] (1) The defendant’s effort and expense involved in

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preparing for trial; [¶] (2) Excessive delay and lack of diligence on the part of the plaintiff in

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prosecuting the action; [¶] (3) Insufficient explanation of the need to take a dismissal; and [¶] (4) The

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fact that summary judgment has been filed by the defendant.” U.S. v. Berg, 190 F.R.D. 539, 543

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(E.D.Cal. 1999) (citing Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987)).

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Having reviewed the record, the Court finds that all factors except the third weigh in favor

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of Plaintiff. Defendant, as noted above, filed an answer to the complaint on October 22, 2010. Since

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then, he has not participated in the litigation, let alone filed a motion for summary judgment.

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Therefore, Defendant’s effort and expense in preparing for trial could not have been significant.

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Plaintiff, by contrast, has been diligent in prosecuting the action, and has already succeeded in

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obtaining partial summary judgment as to liability as well as an award of damages. While Plaintiff

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provides no explanation as to why dismissal of the second and fourth causes of action is needed, the

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foregoing circumstances strongly suggest Defendant will not be prejudiced or unfairly affected by

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dismissal. Accordingly, the Court exercises its discretion to grant Plaintiff’s motion.

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IV. DISPOSITION

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Plaintiff’s motion to dismiss the second and fourth causes of action in the complaint is GRANTED.
The second and fourth causes of action are hereby DISMISSED without prejudice.

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IT IS SO ORDERED.

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Dated:
0m8i78

March 29, 2012
CHIEF UNITED STATES DISTRICT JUDGE
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