Tidwell v. Carrington Real Estate Services (US), LLC et al

Filing 62

ORDER DENYING AS MOOT 48 MOTION TO DISMISS by Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 6/29/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EDWARD COTRELLE TIDWELL,

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For the Northern District of California

United States District Court

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No. C 17-00437 WHA

Plaintiff,
v.
ORDER DENYING AS MOOT
MOTION TO DISMISS

CARRINGTON REAL ESTATE
SERVICES, LLC, et al.,
Defendants.

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/

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Plaintiff Edward Tidwell has voluntarily dismissed defendant Naiman Law Group, PC

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(Dkt. No. 54). Accordingly, Naiman’s pending motion to dismiss (Dkt. No. 48) is DENIED AS

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MOOT.

After its dismissal, however, Naiman filed a brief styled as a reply in support of its

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motion to dismiss, urging the Court to use its “discretion” under FRCP 41(a)(1)(B) to deem

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Naiman’s dismissal as “an adjudication on the merits” (Dkt. No. 59 at 2–4).

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Contrary to Naiman, FRCP 41(a)(1)(B) affords the district court no such discretion.

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That rule provides that a voluntary dismissal without court order is without prejudice except

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that, “if the plaintiff previously dismissed any federal- or state-court action based on or

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including the same claim, a notice of dismissal operates as an adjudication on the merits.” As

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our court of appeals explained in Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193

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F.3d 1074, 1076 (9th Cir. 1999):

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We now make explicit what our cases have indicated before, that
once a notice of voluntary dismissal is filed, the district court in
which the action is pending loses jurisdiction and cannot exercise
discretion with respect to the terms and conditions of the dismissal.
Nor may it rule at the defendant’s request on whether the
plaintiff’s notice of dismissal in a second action is with prejudice
or without prejudice. . . . By the same token, it does not matter
what label the plaintiff attaches to a second voluntary dismissal.
Rather, Rule 41 itself prescribes the effect of Rule 41(a)(1)
dismissals. Accordingly, whether the second voluntary dismissal
is subject to the two dismissal rule such that it operates with
prejudice as an adjudication upon the merits is an issue that
becomes ripe (and can be determined) only in a third action, if and
when one is filed.

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Naiman’s brief does not cite Commercial Space but instead relies on a non-binding decision
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from the Fifth Circuit that is inapposite in any event because it examined the district court’s
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41(a)(2), not on a voluntary dismissal without court order pursuant to FRCP 41(a)(1). See In re
For the Northern District of California

United States District Court

discretion to place conditions on a voluntary dismissal with court order pursuant to FRCP
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FEMA Trailer Formaldahyde Prods. Liab. Litig., 628 F.3d 157, 162–63 (5th Cir. 2010). In
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short, Naiman’s request has no basis in the law and is DENIED.
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IT IS SO ORDERED.
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Dated: June 29, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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