Phoebe Micro, Inc. v. Fry's Electronics, Inc.

Filing 17

STIPULATION AND ORDER DISMISSING ACTION WITHOUT PREJUDICE re 16 Notice of Voluntary Dismissal filed by Phoebe Micro, Inc., ORDER DISMISSING CASE. Signed by Judge Yvonne Gonzalez Rogers on 7/12/13. (fs, COURT STAFF) (Filed on 7/12/2013)

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NENA W. WONG, ESQ. (CSB No. 162570)
METHOD LAW FIRM, A PROFESSIONAL CORPORATION
2945 Townsgate Road, Suite 200
Westlake Village, California 91361
Telephone:
805-409-8544
Facsimile:
805-409-8545
Attorneys for Plaintiff
PHOEBE MICRO, INC., a California corporation

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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PHOEBE MICRO, INC., a California
corporation, Individually, and on behalf of all
others similarly situated,

Case No.: C13-2337-YGR
CLASS ACTION

Plaintiff,

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v.

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Honorable Yvonne G. Rogers
NOTICE OF VOLUNTARY DISMISSAL
PURSUANT TO FED. R. CIV. P. 41(a)(1)
AND ORDER

FRY'S ELECTRONICS, INC., a California
corporation,

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Defendant.
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NOTICE OF VOLUNTARY DISMISSAL
CASE NO. C13-2337-YGR

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TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that Plaintiff Phoebe Micro, Inc. (“Phoebe”), through its counsel

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of record, hereby voluntarily dismisses the action, pursuant to Rule 41(a)(1) of the Federal Rules of

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Civil Procedure. Defendant Fry’s Electronics, Inc. (“Fry’s”) has not filed an answer or a motion for

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summary judgment and this purported class action does not involve a certified class. Thus,

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dismissal does not require a Court order.
Phoebe filed its complaint against Fry’s on May 22, 2013. Phoebe has not filed any motion

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seeking certification of a class. Phoebe and its counsel have decided to voluntarily dismiss the

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claims of Phoebe without prejudice. Phoebe and its counsel have entered into no agreement with

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any defendant in connection with the voluntary dismissal. Neither Phoebe nor its counsel has

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received or will receive any consideration for dismissal.

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Under Federal Rule of Civil Procedure 41(a)(1), Phoebe is entitled to dismiss this action on
its own initiative:

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Subject to the provisions of Rule 23(e), 23,1(c), 23.2 an 66 and any applicable
federal statute, the plaintiff may dismiss an action without a court order by filing:
(i)
A notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment . . . .

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Fed. R. Civ. Proc. 41(a)(1).

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Because the proposed class has not been certified under Rule 23, this voluntary dismissal is

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not subject to restriction under Rule 23(e) of the Federal Rules of Civil Procedure. See Fed. R. Civ.

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Proc. 23(e)(1)(A) (“The claims, issues, or defenses of a certified class may be settled, voluntarily

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dismissed, or compromised only with the court’s approval”) (emphasis added).

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No prejudice to absent putative class members will result from dismissal of the action

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because a class has not been certified, the dismissal will not affect their rights, and no absent

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putative class member will be bound by the voluntary dismissal of Phoebe’s claims.

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/ / /

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NOTICE OF VOLUNTARY DISMISSAL
CASE NO. C13-2337-YGR

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Accordingly, Federal Rule of Civil Procedure 23(e)(1)(B) regarding notice is inapplicable
to the instant dismissal as none of the absent putative class members would be bound:
The court must direct notice in a reasonable manner to all class members who would
be bound by a proposed settlement, voluntary dismissal, or compromise.

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Fed. R. Civ. Proc. 23(e)(1)(B); see also 2003 Advisory Committee Notes (“notice is not required

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when the settlement only binds the individual class representatives”).

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THEREFORE, Phoebe hereby dismisses the action without prejudice as to the individual
claims of Phoebe.

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Dated: July 12, 2013

METHOD LAW FIRM, A PROFESSIONAL CORPORATION
By:

______/s/ Nena W. Wong____________
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NENA W. WONG
Attorneys for Plaintiff
PHOEBE MICRO, INC., a California corporation

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onne Go
Judge Yv

Date: July 12, 2013

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NOTICE OF VOLUNTARY DISMISSAL
CASE NO. C13-2337-YGR

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