Physicians Healthsource, Inc. v. Reliant Technologies, Inc. et al

Filing 51

ORDER of Dismissal. (njvlc1, COURT STAFF) (Filed on 6/11/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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PHYSICIANS HEALTHSOURCE, INC.,

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No. 1:12-CV-2180 NJV

Plaintiff,
ORDER OF DISMISSAL
v.

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For the Northern District of California

United States District Court

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RELIANT TECHNOLOGIES, et al.,

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Defendants.
___________________________________/

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On June 5, 2013, Plaintiff Physicians Healthsource, Inc., and Defendant Solta Medical, Inc.,

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along with its predecessor in interest, Defendant Reliant Technologies, Inc., (“the parties”) filed a

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Stipulation of Dismissal of this action pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil

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Procedure. The parties stipulated to dismissal of individual claims asserted by Plaintiff Physicians

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Healthsource, Inc., with prejudice. The parties further stipulated to the dismissal of all claims

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asserted on behalf of a putative class without prejudice, because no class has been certified and no

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notice is being provided to the putative class. Each party is to bear its own attorneys’ fees, expenses

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and costs.

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Rule 41(a)(1)(A)(ii) provides for voluntary dismissal of an action without court order based

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on a stipulation signed by all parties who have appeared. Rule 41(a)(1)(A), however, expressly

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states that it is subject to Rule 23(e). Rule 23(e) formerly provided that, “[a] class action shall not be

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dismissed or compromised without the approval of the court, and notice of the proposed dismissal or

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compromise shall be given to all members of the class in such manner as the court directs.” Rule

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23(e) (1998). A body of older case law exists holding that a civil action brought as a class action is

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to be treated as a class action even before certification of the class. See, e.g., Preferred MSO of

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America - Austin LLC v. Quadramed Corp., 85 F.Supp.2d 974, 979 (C.D. Cal. 1999). This

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proposition has been applied to voluntary dismissals under Rule 41(a)(1)(A)(ii), requiring court

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approval of the dismissal although no class had yet been certified. See generally, City of Inglewood

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v. Unnamed Citizens, 508 F.2d 1283 (9th Cir. 1974).

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The language of Rule 23(e) was rewritten in 2003. The initial paragraph now provides,

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“[t]he claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or

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compromised only with the court’s approval.” This language makes it clear that Rule 23(e) applies

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only to cases in which a class has been certified. Here, no class has been certified. Accordingly,
court approval is not needed for voluntary dismissal of this action pursuant to Rule 41(a)(1)(A)(ii) .

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For the Northern District of California

United States District Court

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Accordingly, IT IS HEREBY ORDERED as follows:
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The individual claims asserted by Plaintiff Physicians Healthsource, Inc., are DISMISSED
with prejudice;

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2)

All claims asserted on behalf of a putative class are DISMISSED without prejudice;

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3)

This action is DISMISSED in its entirety. The Clerk is directed to close this case.

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Dated: June 11, 2013

______________________________

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Nandor J. Vadas
United States Magistrate Judge

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