Chavez v. Ocwen Loan Servicing, LLC et al
ORDER signed by District Judge Anthony W. Ishii on 12/22/2016 setting briefing schedule on Plaintiff's 16 MOTION to DISMISS. Defendants Response due by 1/4/2017; Plaintiff's Reply due by 1/11/2017.(Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:16-CV-1519 AWI SKO
ORDER SETTING BRIEFING
SCHEDULE ON PLAINTIFF’S RULE
41(a)(2) MOTION TO DISMISS
OCWEN LOAN SERVICING, LLC, et al.,
(Doc. No. 16)
On November 30, 2016, Plaintiff filed a notice of settlement. See Doc. No. 12. On
December 6, 2016, Magistrate Judge Oberto ordered the parties to file dispositional paper within
21 days, per the Local Rules. See Doc. No. 14.
On December 21, 2016, Plaintiff filed a notice of voluntary dismissal and a motion to
dismiss pursuant to Rule 41(a)(2). See Doc. Nos. 15, 16. The voluntary dismissal states that the
Defendants being dismissed have not filed an answer, but the motion does not actually identify the
Defendants. The motion to dismiss states that Defendants Ocwen and Wells Fargo have filed
answers. See id. A review of the record confirms that Ocwen and Wells Fargo have indeed filed
answers. See Doc. No. 1 at Ex. 3. Although Western Progressive is represented by the same
counsel, Western Progressive has not actually filed an answer. Thus, it appears that Western
Progressive is the defendant who is the subject of the notice of voluntary dismissal.
The answer of Ocwen and Wells Fargo is significant. Their answer prevents Plaintiff from
utilizing Rule 41(a)(1)(A)(i) to unilaterally and automatically terminate this case or a particular
defendant. See Fed. R. Civ. P. 41(a)(1)(A)(i); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th
Cir. 1999); Warren v. Green Tree Servicing LLC, 2015 U.S. Dist. LEXIS 22665, *1-*2 (D. Colo.
Feb. 24, 2015); Rachel v. City of Mobile, 2015 U.S. Dist. LEXIS 11582, *2-*3 (S.D. Ala. Feb. 2,
2015); Local 2-1971 of PACE Intl. Union v. Cooper, 364 F.Supp.2d 546, 551 (W.D. N.C. 2005);
Sullivan b. Bankhead Enterprises, Inc., 108 F.R.D. 378, 382 (D. Mass. 1985). Although
Defendant Western Progressive has not filed an answer, because Ocwen and Wells Fargo have not
signed the stipulation, Plaintiff’s notice of voluntary dismissal is ineffective under Rule
41(a)(1)(A)(i). See id. Therefore, Western Progressive remains a defendant.
With respect to the motion to dismiss under Rule 41(a)(2), Plaintiff’s counsel indicates that
her client wishes to forgo settlement and prefers to simply dismiss this case. See Doc. No. 16.
Plaintiff’s counsel also anticipates that Ocwen and Wells Fargo will oppose the dismissal. See id.
At this time, there is no hearing date set for the Rule 41(a)(2) motion.
Given the representations of Plaintiff’s counsel, the Court will set a briefing schedule. As
part of the response/opposition, Defendants will be required to indicate whether they oppose or
consent to the dismissal of Western Progressive.
Accordingly, IT IS HEREBY ORDERED that:
Defendants shall file a response or opposition to Plaintiff Rule 41(a)(2) motion (Doc. No. 1
6) as soon as possible, but no later than January 4, 2017; and
Plaintiff shall file a reply to any response or opposition no later than January 11, 2017.1
IT IS SO ORDERED.
Dated: December 22, 2016
SENIOR DISTRICT JUDGE
Following review of the parties’ papers, if the Court determines that a hearing would be beneficial, it will set a
hearing date at that time.
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