Massingale v. Select Portfolio Servicing, Inc. et al

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 7/6/17, ORDERING that within 21 days of this order, the parties shall further meet and confer, and if agreeable, shall file a stipulation allowing for a brief re-opening of this case to allow th e court to rule on the pending ex parte application. If the parties are unable to so agree, they shall nonetheless inform the court of their positions in a jointly filed statement within 21 days of this order. Alternatively, plaintiff may file a properly executed withdrawal of the lis pendens, with the parties promptly notifying the court of such a withdrawal once effectuated. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH MASSINGALE,

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No. 2:16-cv-2967-KJN

Plaintiff,
v.

ORDER

SELECT PORTFOLIO SERVICING,
INC., et al.,
Defendants.

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On June 8, 2017, after entering into a settlement agreement with defendants, plaintiff filed

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a notice of voluntary dismissal of the action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(a)(1)(A)(i), with each side to bear its own fees and costs. (ECF No. 23.) The court

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confirmed the voluntary dismissal in a minute order dated June 12, 2017. (ECF No. 24.)

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Thereafter, on July 3, 2017, defendants filed an ex parte application to expunge a lis

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pendens with respect to the property at issue in the closed action and for an award of attorneys’

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fees and costs. (ECF No. 25.) According to defendants, as part of the parties’ settlement

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agreement, plaintiff agreed to execute and file a withdrawal of the lis pendens by May 29, 2017,

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but has not yet done so to date. Defendants further contend that they have expended $1,000.00 of

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attorneys’ fees and costs in informally attempting to have plaintiff file the withdrawal of the lis

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pendens and in bringing this ex parte application.
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Assuming for the moment that the facts are as represented by defendants, the court is

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sympathetic to defendants’ request for an order directing plaintiff to comply with the terms of the

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parties’ settlement agreement. However, once a notice of voluntary dismissal has been filed, “the

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district court loses jurisdiction over the dismissed claims and may not address the merits of such

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claims or issue further orders pertaining to them.” U.S. v. Real Property Located at 475 Martin

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Lane, Beverly Hills, California, 545 F.3d 1134, 1145 (9th Cir. 2008). Thus, it appears that the

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court lacks jurisdiction to issue a further order with respect to the lis pendens.

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Nevertheless, the court also assumes that plaintiff’s counsel, as an officer of the court, is
acting in good faith, and does not intend to take a manifestly unfair position that would require

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defendants to file a new action to enforce the settlement agreement, potentially exposing her

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and/or her client to significant attorneys’ fees and costs. Accordingly, IT IS HEREBY

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ORDERED that:

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1. Within 21 days of this order, the parties shall further meet and confer, and if

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agreeable, shall file a stipulation allowing for a brief re-opening of this case to allow

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the court to rule on the pending ex parte application. If the parties are unable to so

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agree, they shall nonetheless inform the court of their positions in a jointly filed

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statement within 21 days of this order.

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2. Alternatively, plaintiff may file a properly executed withdrawal of the lis pendens,
with the parties promptly notifying the court of such a withdrawal once effectuated.
IT IS SO ORDERED.
Dated: July 6, 2017

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