Brooks et al v. FCI Lender Services, Inc. et al

Filing 35

ORDER signed by Magistrate Judge Kendall J. Newman on 4/19/17 ORDERING that Defendant OCWEN is DISMISSED from this action with prejudice pursuant to its stipulation with plaintiffs (ECF No. 34 ); Plaintiffs and Ocwen shall bear their own fees and costs, including all attorneys' fees, incurred in connection with this action. (Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN BROOKS, et al. 12 Plaintiffs, 13 14 No. 2:16-cv-2598-KJM-KJN (PS) ORDER v. FCI LENDER SERVICES, INC., et al., 15 Defendants. 16 On March 29, 2017, defendant Ocwen Loan Servicing (“Ocwen”) filed a stipulation 17 18 between itself and both plaintiffs stating that plaintiffs voluntarily dismiss all claims asserted 19 against Ocwen in this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).1 (ECF 20 No. 34.) Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that “plaintiff[s] may dismiss 21 an action without a court order by filing . . . a stipulation of dismissal signed by all parties who 22 have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii) (emphasis added). Here, the stipulation is signed 23 only by plaintiffs and counsel for Ocwen; the other defendants who have appeared in this action 24 to date have not signed the stipulation to voluntarily dismiss. Accordingly, the stipulation is 25 defective insofar as it is made pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). 26 However, Federal Rule of Civil Procedure 41(a)(2) permits dismissal at the plaintiffs’ request by 27 28 1 Both plaintiffs signed the filed stipulation. (ECF No. 34.) 1 1 court order, “on terms the court considers proper.” Fed. R. Civ. P. 41(a)(2). Indeed, while 2 plaintiffs and Ocwen request that their stipulation be approved pursuant to Federal Rule of Civil 3 Procedure 41(a)(1)(A)(ii), which does not need a court order to take effect, their request that the 4 court issue an order approving the stipulated terms of dismissal appears to actually be a request 5 for a court order of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2). Because the 6 court finds the stipulated terms of dismissal in Ocwen’s and plaintiffs’ request to be proper, the 7 court grants their request. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. 10 11 12 13 14 Defendant Ocwen is dismissed from this action with prejudice pursuant to its stipulation with plaintiffs (ECF No. 34). 2. Plaintiffs and Ocwen shall bear their own fees and costs, including all attorneys’ fees, incurred in connection with this action. IT IS SO ORDERED. Dated: April 19, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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