Zacharias v. U.S. Bank N.A. et al

Filing 44

***Civil Case Terminated. ORDER re 41 Notice of Voluntary Dismissal filed by Reyna U. Zacharias, 42 Notice (Other), filed by Bank of America, N.A., U.S. Bank N.A., and 43 Joinder filed by JP Morgan Chase Bank, N.A. Signed by Judge Samuel Conti on October 27, 2014. (sclc2, COURT STAFF) (Filed on 10/27/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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REYNA U. ZACHARIAS,

) Case No. 14-02186 SC
)
Plaintiff,
) ORDER RE: PLAINTIFF'S
) "REQUEST" FOR DISMISSAL
v.
)
)
U.S. BANK N.A.; JP MORGAN CHASE
)
BANK, N.A.; BANK OF AMERICA, N.A.; )
AND DOES 1-10, INCLUSIVE,
)
)
Defendants.
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)
)

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Now before the Court is a request by Plaintiff Reyna U.

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Zacharias to dismiss her claims without prejudice pursuant to

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Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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("Voluntary Dismissal").

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Morgan Chase ("Chase") have filed notices pointing out Plaintiff's

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failure to comply with the Court's earlier order granting in part

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and denying in part Defendants' motion to dismiss, ECF No. 39 ("MTD

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Order").

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While the Court concludes it lacks jurisdiction to consider the

ECF No. 41

In response Defendants U.S. Bank and JP

ECF Nos. 42 ("U.S. Bank Notice"); 43 ("Chase Notice").

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issues raised in Defendants' notices because Plaintiff's notice of

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voluntary dismissal immediately and automatically divested the

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Court of jurisdiction, the Court nonetheless writes to clarify two

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remaining issues for the parties.
In the Court's prior order on Defendants' motion to dismiss,

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the Court dismissed all of Plaintiff's claims with prejudice except

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her claims under California Civil Code Section 2923.5.

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dismissed the Section 2923.5 claims as time-barred and granted

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Plaintiff thirty days to file an amended complaint pleading "why,

The Court

United States District Court

For the Northern District of California

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if at all, the statute of limitations should be tolled."

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at 20.

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2014, however Plaintiff failed to file an amended complaint by that

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date.

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filed a notice requesting "that the Complaint and all causes of

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action be dismissed pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) and

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this request, without prejudice, each party to bear its own costs

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and fees."

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MTD Order

The deadline to file an amended complaint was September 19,

Instead, ten days later on September 29, 2014 Plaintiff

Voluntary Dismissal at 1.

Defendants argue that the Court should dismiss Plaintiff's

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claims, but contends the dismissal should be with prejudice for two

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reasons.

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repeated pattern of ignoring Court orders and serially refiling

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claims "simply to stall enforcement of obligations under her deed

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of trust relating to the Property."

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Second, Defendants suggest that because "the plaintiff previously

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dismissed [a] federal- or state-court action based on or including

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the same claim," her notice of dismissal should "operate[] as an

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adjudication on the merits."

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the so-called "two-dismissal rule."

First, Defendants points to Plaintiff and her counsel's

U.S. Bank Notice at 1.

Fed. R. Civ. P. 41(a)(1)(B).

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This is

See Thomas v. Wells Fargo

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Bank, N.A., No. 13-02065 JSW, 2013 WL 5313458, at *2 (N.D. Cal.

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Sept. 23, 2013).

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While Defendants may well be right about both issues, it is

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not appropriate for them to raise them at this time.

Under Rule

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41(a)(1), "a plaintiff has an absolute right voluntarily to dismiss

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his action prior to service by the defendant of an answer or a

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motion for summary judgment."

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(9th Cir. 1995).

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previously filed a motion to dismiss.

Concha v. London, 62 F.3d 1493, 1506

This is true even if, as here, Defendants have
Id.

Most importantly here,

United States District Court

For the Northern District of California

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"[t]he dismissal is effective on filing and no court order is

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required."

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notice of voluntarily dismissal functions to automatically

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terminate the action.

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notice of dismissal under the circumstances described in Rule

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41(a)(1) deprives the Court of jurisdiction to consider the merits

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of the case or issue further orders.

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41.33[6][e]; see also Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir.

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1993).

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Defendants' objections or opine as to the application of the two-

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dismissal rule.

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do so when and if Plaintiff chooses to file another action.

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Id. (emphasis added).

Id.

In other words, simply filing a

As a result, the mere filing of a

8 Moore's Fed. Prac. §

Accordingly, the Court lacks jurisdiction to entertain

If Defendants wish to raise these issues they must

Nevertheless the Court writes to clarify two points for the

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parties.

First, Plaintiff's notice of dismissal includes a

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proposed order.

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without leave of the Court, has an absolute right to dismiss her

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claims under these circumstances.

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Accordingly the Court will not sign Plaintiff's proposed order, and

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instead DIRECTS the Clerk to terminate this action.

This is unnecessary because Plaintiff, with or

Pedrina, 987 F.2d at 610.

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Second,

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despite lacking jurisdiction to dismiss the action with prejudice

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or otherwise determine the impact of Plaintiff's second voluntary

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dismissal, see Zacharias v. JP Morgan Chase Bank, Inc., No. 12-cv-

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6525-SC, ECF No. 53 ("Stip. of Dismissal"), the Court wishes to

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point out Plaintiff's repeated failure to comply with Court orders.

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The Court has now dismissed Plaintiff's claims three times.

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Between this action and the related case, Plaintiff and her counsel

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have repeatedly failed to comply with the Court's orders by

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refiling claims previously dismissed with prejudice, adding

United States District Court

For the Northern District of California

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unauthorized amendments to pleadings, filing an irrelevant and

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frivolous opposition brief, failing promptly to comply with the

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Court's order to share a copy of a prior dismissal order with

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Plaintiff, and now failing to file an amended complaint in the time

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permitted.

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failure to comply with court orders may itself be an appropriate

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grounds for dismissal with prejudice, and the Court may do so sua

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sponte.

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2003) (citing Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)).

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As a result the Court now warns Plaintiff: repeated

See McClure v. Fessler, 57 F. App'x 727, 727 (9th Cir.

The Clerk shall terminate the case.

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IT IS SO ORDERED.

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Dated: October 27, 2014
UNITED STATES DISTRICT JUDGE

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