Cuadra v. George Brown Sports Club-Palm, Inc. et al

Filing 32

ORDER Rejecting 28 Stipulation of Parties, signed by District Judge Dale A. Drozd on 12/13/2017. (The court declines to sign the proposed order approving the dismissal of defendant McKeand pursuant to the stipulation filed on 12/12/2017.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO CUADRA,

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Plaintiff,

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No. 1:17-cv-01063-DAD-EPG

v.

ORDER REJECTING STIPULATION OF
PARTIES

GEORGE BROWN SPORTS CLUBPALM, INC., GEORGE BROWN
SPORTS CLUB, INC., JOHNSON
CONTRACTING, INC., and DOES 1
through 100, inclusive,

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(Doc. No. 28)

Defendants.

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JOHNSTON CONTRACTING, INC., a
California corporation,

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Third Party Plaintiff,

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v.
WILLIAM MCKEAND dba TEC SPEC,
WCM, INC. dba TEC SPEC, a California
corporation, and ROES 1 to 50, inclusive,

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Third Party Defendants.

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/////

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/////

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WCM, INC. dba TEC SPEC, a California
corporation,

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Third Party Plaintiff,
v.
AMERICAN SPECIALTIES, INC.,
KENNETH GLEN CLARK dba CLARK
INSTALLATION, and ROES 1 to 25,
inclusive,
Third Party Defendants.

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This case was initially removed to this court on August 8, 2017. (Doc. No. 1.) Following

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its removal, several parties have filed third-party complaints, naming additional defendants. (See

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Doc. Nos. 14, 29.) Thus far, plaintiff Cuadra, defendants George Brown Sports Club-Palm, Inc.

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and George Brown Sports Club, Inc., defendant and third-party plaintiff Johnston Contracting,

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Inc., and third-party defendants William McKeand and WCM, Inc., the latter of whom is also a

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third-party plaintiff, have all appeared in the action. On December 12, 2017, Johnston

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Contracting, Inc. filed a stipulation to dismiss third-party defendant William McKeand from the

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action without prejudice. (Doc. No. 28.) This stipulation was signed solely by counsel for

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Johnston Contracting, Inc. and counsel for William McKeand and WCM, Inc. (See id.) The

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stipulation was not signed by any other parties that have entered an appearance here.

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Rule 41 of the Federal Rules of Civil Procedure permits dismissal of an action without a

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court order upon the filing of a stipulation of dismissal “signed by all parties who have appeared.”

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Fed. R. Civ. P. 41(a)(1)(A)(ii). Federal court have interpreted this provision to mean the

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stipulation must be signed by all parties who have appeared, not merely those parties named in

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the particular complaint that is being dismissed. See Negron v. City of Miami Beach, 113 F.3d

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1563, 1571 (11th Cir. 1997) (“The rule is clearly stated: a voluntary dismissal by stipulation is

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applicable only if all the parties sign off on it.”); Am. Zurich Ins. Co. v. Cal. Faucets, Inc., No. 14

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Civ. 9146 (LGS), 2016 WL 4544064, at *3 (S.D.N.Y. Aug. 30, 2016) (indicating that a third-

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party defendant’s signature was required for dismissal under Rule 41(a)(1)(A)(ii)); Castillo v.

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Kovacevich, No. 1:13-cv-47-TLS, 2013 WL 2358992, at *1 (N.D. Ind. May 28, 2013) (declining
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to dismiss a counterclaim under Rule 41(a)(1)(A)(ii) because the stipulation lacked the signature

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of one appearing defendant, even though that defendant had not asserted any counterclaims,

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cross-claims, or third-party claims); Lenox Hotel Co. v. Charter Builders, Inc., 717 F. Supp.

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1558, 1561 (N.D. Ga. 1989) (noting that a motion under Rule 41(a)(2) was necessary because

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certain third party defendants had refused to sign the stipulation of dismissal); see also Nguyen v.

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U.S. D.E.A., No. 1:0 CV 00026 MP AK, at *3 (N.D. Fla. Sept. 1, 2005).

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Here, several parties who have appeared in this action have not stipulated to the dismissal

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of defendant McKeand, including Cuadra, George Brown Sports Club-Palm, Inc., and George

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Brown Sports Club, Inc. Therefore, dismissal under Rule 41(a)(1)(A)(ii) is improper. Counsel

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may either file a stipulation meeting the requirements of Rule 41(a)(1)(A)(ii) or they may file a

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motion to voluntarily dismiss defendant McKeand under Rule 41(a)(2), if a stipulation cannot be

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obtained.

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For these reasons, the court declines to sign the proposed order approving the dismissal of

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defendant McKeand pursuant to the stipulation filed on December 12, 2017 (Doc. No. 28).

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IT IS SO ORDERED.

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Dated:

December 13, 2017
UNITED STATES DISTRICT JUDGE

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