Segalman v. Southwest Airlines Co.

Filing 67

ORDER signed by District Judge Morrison C. England, Jr on 9/23/16 ORDERING that Plaintiff's MOTION 62 is DENIED. Plaintiff is free to either file a renewed motion seeking dismissal with prejudice or to proceed with litigation in this Court.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT SEGALMAN,

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No. 2:11-cv-01800-MCE-CKD

Plaintiff,
v.

ORDER

SOUTHWEST AIRLINES CO.,
Defendant.

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Through this action, Plaintiff Robert Segalman (“Plaintiff”) alleges several causes

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of action against Defendant Southwest Airlines (“Defendant”) based on Defendant’s

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alleged improper handling of Plaintiff’s electronic wheelchair. On October 24, 2012, the

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Court dismissed Plaintiff’s Second Amended Complaint without leave to amend. ECF

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No. 36. The United States Court of Appeals for the Ninth Circuit subsequently affirmed

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in part, vacated in part, and remanded the action. ECF No. 43.

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Plaintiff filed a Third Amended Complaint (“TAC”) setting forth claims for four

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causes of action: (1) a violation of the Air Carrier Access Act (“the ACAA”), 49 U.S.C. §

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41705; (2) violations of “California Accessibility Laws”; (3) negligence; and (4) a violation

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of California’s Unfair Competition Law, California Business and Professions Code

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section 17200 et seq. Defendant responded by filing a Motion to Dismiss the first,

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second, and fourth causes of action pursuant to Federal Rule of Civil Procedure
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12(b)(6),1 which was granted leaving only Plaintiff’s negligence claim for adjudication.2

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Now pending before the Court is Plaintiff’s Motion to Dismiss his last remaining claim

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without prejudice so he can pursue an appeal. ECF No. 62. Defendant does not

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oppose dismissal, but argues that it should be with prejudice. The Court agrees with

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Defendant.

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Given the protracted litigation that has already occurred in this case, and on this

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extensive record, the Court is not willing to dismiss a cause of action without prejudice

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over the objection of the opposing party. Nor has Plaintiff shown that any economies will

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be preserved by dismissing his negligence claim now rather than continuing to litigate it

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through judgment. Accordingly, since Plaintiff specifically requested dismissal without

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prejudice, the Plaintiff’s Motion is DENIED.3 Plaintiff is free to either file a renewed

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motion seeking dismissal with prejudice or to proceed with litigation in this Court.

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IT IS SO ORDERED.
DATED: SEPTEMBER 23, 2016

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All subsequent references to “Rule” are to the Federal Rules of Civil Procedure.
Defendant also asked that the Court strike various individual allegations, which requests were

denied.
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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. See E.D. Cal. Local R. 230(g).

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