Paed et al v. Wells Fargo Bank, N.A. et al

Filing 25

ORDER REGARDING REQUEST TO DISMISS. Signed by Judge Jeffrey S. White on 7/22/2015. (jebS, COURT STAFF) (Filed on 7/22/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CECILLE Q. PAED, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,

No. C 15-01980 JSW

v.
WELLS FARGO BANK, N.A.,

ORDER REGARDING REQUEST
TO DISMISS

Defendant.
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Now before the Court is the request by Plaintiff to voluntarily dismiss this case without

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prejudice pursuant to Federal Rule of Civil Procedure 41. The Court has considered the parties’

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papers relevant legal authority, and the record in this case.

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Federal Rule of Civil Procedure 41 provides, in relevant part, that “an action may be

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dismissed at the plaintiff’s request only by court order, on terms that the court considers

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proper.” Fed. R. Civ. P. 41(a)(2). “The Ninth Circuit has long held that the decision to grant a

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voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the District

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Court.” Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). In

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exercising its discretion, the Court “must consider whether the defendant will suffer some plain

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legal prejudice as a result of the dismissal.” Id.

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In light of the Court’s Order on the motion to dismiss filed by Defendant Wells Fargo

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Bank, N.A. (“Wells Fargo”), Wells Fargo urges that the dismissal be with prejudice on all of

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Plaintiffs’ claims except the one under California Civil Code section 2923.5. The Court notes

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that the Order on the motion to dismiss left open the possibility of providing leave to amend

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Plaintiffs’ negligence claim. Moreover, depending upon whether Plaintiffs could allege claims

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for violation of section 2923.5 or a negligence claim, they may be able to state a claim for

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violation of California Business and Professions Code section 17200 as well. Therefore, the

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Court finds that the dismissal of Plaintiffs’ negligence claim and Section 17200 claim should be

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without prejudice as well. Accordingly, Court HEREBY GRANTS Plaintiffs’ request to

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voluntarily dismiss this action. However, based on the Court’s Order on the motion to dismiss,

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the Court dismisses Plaintiffs’ claim pursuant to California Civil Code section 2923.55 and their

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claim for breach of the implied covenant of good faith and fair dealing with prejudice. The

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remainder of Plaintiffs’ claims are dismissed without prejudice.
IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: July 22, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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