Victor Jones v. TW & Company, et al

Filing 39

ORDER STRIKING 33 August 22, 2012 Order to Remand and Directing Clerk of Court to Reopen This Action; ORDER GRANTING 35 Plaintiff's Motion to Dismiss Defendant TW & Company, Inc. signed by District Judge Anthony W. Ishii on 1/23/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTOR JONES,
v.

CASE NO. 1:11-cv-01242-AWI-JLT
Plaintiff

TW & COMPANY, INCORPORATED,
DBA IN CALIFORNIA AS THE TANYA
A. WALKER CORPORATION;
RICHARD MOORE, and individual;
MARK WOOK, and individual; DOES 1
through 25,
Defendants.

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ORDER STRIKING AUGUST 22, 2012
ORDER TO REMAND AND
DIRECTING THE CLERK OF THE
COURT TO REOPEN THIS ACTION
(Doc. No. 33)
ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS DEFENDANT
TW & COMPANY, INCORPORATED
(Doc. No. 35)

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Background

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On June 18, 2012, Defendant TW & Company filed for bankruptcy.

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On June 20, 2012, the Court stayed this action in light of the bankruptcy of a Defendant.

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On August 22, 2012, an order remanding a completely different action was inadvertently

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filed in this case. See Doc. No. 33. The remanded order was in a case styled Bank of New York

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Mellon v. Kellerman. See id. The case number for the case at bar was mistakenly used on the

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Kellerman remand order. See id.

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On August 23, 2012, the Clerk of the Court entered a minute order of docket correction,

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which stated that the remand order should be disregard because the wrong case number was listed.

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See Doc. No. 34. However, the Clerk of the Court did not formally re-open the case.

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On November 11, 2013, Plaintiff filed a motion to reopen the case and dismiss Defendant

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TW & Company under Rule 41(a)(2). See Doc. No. 36. Plaintiff explains that, due to the

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bankruptcy stay, the best option is to dismiss TW & Company and proceed against the individual

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defendants. See id. No defendant filed an opposition to this motion, and it was taken under

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submission on December 13, 2013.

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Legal Standards

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Federal Rule of Civil Procedure 41(a) “allows plaintiffs voluntarily to dismiss some or all

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of their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy

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Ctr., LLC, 548 F.3d 738, 748 (9th Cir. 2008). Where a defendant has served an answer or a

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motion for summary judgment but has not signed a stipulation to dismiss, a plaintiff’s voluntary

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dismissal must be effected through Rule of Civil Procedure 41(a)(2). See Fed. R. Civ. Pro. 41(a);

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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1999). Rule 41(a)(2) provides in pertinent

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part: “Except as provided in [Rule 41(a)(1)], an action shall not be dismissed at the plaintiff’s

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instance save upon order of the court and upon such terms and conditions as the court deems

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proper. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without

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prejudice.” Fed. R. Civ. Pro. 41(a)(2); Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2003). “A

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district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant

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can show that it will suffer some plain legal prejudice as a result.” WPP Lux. Gamma Three Sarl

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v. Spot Runner, Inc., 655 F.3d 1039, 1058 n.6 (9th Cir. 2011).

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Discussion

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With respect to Plaintiff’s request to re-open, the request is proper and well founded. This

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case was inadvertently closed due to a mistaken remand in an unrelated case. It seems that the

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Clerk’s order of docket correction should have re-opened proceedings, but for some reason it did

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not. The Court will order the Clerk’s office to formally reopen this matter and formally strike the

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erroneous remand order.

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With respect to dismissal of the bankrupt defendant T.W. and Company, courts have

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recognized that a dismissal of bankrupt defendant will not violate the 11 U.S.C. § 362 automatic

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bankruptcy stay if the dismissal is consistent with the bankruptcy stay. See O’Donnell v. Vencor,

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Inc., 466 F.3d 1104, 1110 (9t h Cir. 2006); Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755

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(9th Cir. 1995); Miller v. Media Servs. Acquisition Corp., 2011 U.S. Dist. LEXIS 60272, *3

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(W.D. Wash. June 6, 2011); Banta v. Medical Staffing Network, 2010 U.S. Dist. LEXIS 92348,
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*2-*4 (W.D. Wash. Aug. 17, 2010). Dismissals under Rule 41(a)(2) have been granted despite a

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bankruptcy stay. See Wells Fargo Bank, N.A. v. Greenstreet Props., LLC, 2013 U.S. Dist. LEXIS

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85318 (D. Ariz. June 17, 2013); Miller, 2011 U.S. Dist. LEXIS 60272 at *3-*4; Banta, 2010 U.S.

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Dist. LEXIS 92348 at *2-*4. In accord with these cases, the bankruptcy stay would not prevent

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dismissal of T.W. & Company. See id.

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Otherwise, in the absence of an opposition by any defendant, the Court sees no reason not

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to grant Plaintiff’s requested dismissal under Rule 41(a)(2). WPP Lux., 655 F.3d at 1058 n.6.

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T.W. & Company will be dismissed under Rule 41(a)(2).

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to reopen is GRANTED;

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2.

The Clerk shall change the status of this case to RE-OPENED;

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3.

Doc. No. 33 is STRICKEN from the docket as having been filed in error;

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4.

Plaintiff’s Rule 41(a)(2) motion to dismiss defendant T.W. & Company is GRANTED;

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and
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Defendant T.W. & Company is DISMISSED from this case.

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IT IS SO ORDERED.
Dated: January 23, 2015
SENIOR DISTRICT JUDGE

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