Pfitzer v. Beneficial California, Inc.

Filing 56

ORDER signed by Chief Judge Morrison C. England, Jr., on 12/31/13 ORDERING that this Court DISMISSES without prejudice Plaintiff's claim against Mann Bracken and its Receiver. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAMELA PFITZER, aka PAMELA
EBERT,
Plaintiff,

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v.

No. 2:09-cv-02634-MCE-AC

ORDER

BENEFICIAL CALIFORNIA, INC., ET.
AL.,

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Defendant.

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On December 23, 2013, Plaintiff Pamela Pfitzer, (“Plaintiff”), filed a notice of

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voluntary dismissal pursuant to Federal Rules of Civil Procedure 41(a)1 as to all claims in

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this action without prejudice as to Defendants Mann Bracken LLP, (“Mann Bracken”),

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and Cheryl E. Rose, Receiver for Mann Bracken LLC, (“Receiver”). Notice, Dec. 23,

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2013, ECF No. 53.2 Under Rule 41(a)(1)(A)(i), a plaintiff may dismiss an action without a

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court order by filing a notice of dismissal before the opposing party serves either an

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answer or a motion for summary judgment. Fed. R. Civ. P. 41.

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise stated.
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The Court dismissed all claims against Defendant Beneficial California, Inc. in this matter on
6/11/2010. ECF No. 36, 39. Accordingly, the only remaining Defendants in this action are Mann Bracken
and its Receiver. See ECF No. 52.

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On December 27, 2013, in response to this Court’s Order to Show Cause (ECF

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Nos. 51, 52), the Receiver informed the Court that “[d]espite having a good faith

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defense, the Receiver has not retained local counsel to defend the action since there are

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insufficient funds to pay all claims in full AND the Plaintiff’s claim would be addressed in

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the Receivership proceeding after a claim is filed.” Response, Dec. 27, 2013, ECF No.

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55 (emphasis in original). Although the Receiver asserted that the Receivership Estate

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of Mann Bracken may have a good faith defense to Plaintiff’s claim, neither Mann

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Bracken LLP nor its Receiver filed an answer or a motion for summary judgment in

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response to Plaintiff’s Complaint. Id.; see ECF Nos. 52, 53, 55. Therefore, this Court

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may dismiss this action pursuant to Rule 41(a)(1)(A)(i).
In light of Plaintiff’s request for voluntary dismissal (ECF No. 53), on the Court’s

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own motion pursuant to Rule 41(a)(1)(A)(i), this Court DISMISSES without prejudice

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Plaintiff’s claim against Mann Bracken and its Receiver. The Clerk of the Court is

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directed to CLOSE this case.

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IT IS SO ORDERED.

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Dated: December 31, 2013

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