Rose v. Discover Financial Services, Inc. et al

Filing 44

Order by Hon. Lucy H. Koh granting 31 Motion to Dismiss.(lhklc1, COURT STAFF) (Filed on 5/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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PHILLIP B. ROSE,

)
)
Plaintiff,
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v.
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DISCOVER FINANCIAL SERVICES, INC.; JP )
MORGAN CHASE NATIONAL CORPORATE )
SERVICE, INC. DBA JP MORGAN & CHASE; )
U.S. BANCORP, DBA AS US BANK;
)
PENNSYLVANIA HIGHER EDUCATION
)
ASSISTANCE AGENCY, DBA AMERICAN )
EDUCATION SERVICES; SALLIE MAE,
)
INC.; BANK OF AMERICA CORPORATION; )
AMERICAN EXPRESS COMPANY; WELLS )
FARGO BANK, LTD.; AND DOES 1 TO 20
)
inclusive,
)
)
Defendants.
)
)

CASE NO.: 12-CV-00425-LHK
ORDER DISMISSING ACTION

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Before the Court is Plaintiff’s Request for Dismissal of Entire Action Against All

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Defendants Without Prejudice. ECF No. 31. Pursuant to Civil Local Rule 7-1(b), the Court finds

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this Request appropriate for determination without oral argument. Accordingly, the hearing set for

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May 31, 2012, is hereby VACATED. Having considered the procedural history, the parties’

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submissions, and the relevant law, the Court GRANTS Plaintiff’s Request for the reasons set forth

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below.

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CASE NO. 12-CV-00425-LHK
ORDER DISMISSING ACTION

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I.

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Procedural History

On December 15, 2011, Plaintiff, proceeding pro se, filed suit in Santa Clara Superior
Court against eight Defendants: (1) Discover Financial Services, Inc. (“Discover”); (2) JP Morgan

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Chase National Corporate Service d/b/a JP Morgan & Chase (“Chase”); (3) U.S. Bancorp d/b/a US

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Bank (“U.S. Bancorp”); (4) Pennsylvania Higher Education Assistance Agency d/b/a American

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Education Services (“AES”); (5) Sallie Mae, Inc. (“Sallie Mae”); (6) Bank of America Corp.

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(“BofA”); (7) American Express Co. (“AmEx”); (8) Wells Fargo Bank, Ltd. (“Wells Fargo”). ECF

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No. 1. The complaint alleges the following claims: (1) violations of the Rosenthal Fair Debt

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Collection Practices Act; (2) violations of the Federal Fair Debt Collection Practices Act; (3)

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United States District Court
For the Northern District of California

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violations of Cal. Penal Code § 632; (4) Intentional Infliction of Emotional Distress; and (5)

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Negligent Infliction of Emotional Distress. Compl. ¶¶ 6-26. Defendants removed the action to

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federal court on January 26, 2012. ECF No. 1. No Defendant filed or served an answer in the

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Santa Clara Superior Court prior to removal.

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On February 1, 2012, AES filed a motion to dismiss. ECF No. 4. On February 2, 2012,

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Sallie Mae, Chase, and U.S. Bancorp filed separate motions to dismiss. ECF Nos. 12, 16, 18. On

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February 2, 2012, BofA filed and served an answer. ECF No. 11. Also on February 2, 2012, Wells

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Fargo filed, but did not serve an answer. ECF No. 10. 1 The case was reassigned to the

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undersigned judge on February 3, 2012. ECF No. 22.

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On February 15, 2012, Plaintiff filed his Request for dismissal without prejudice. ECF No.

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31. Because it appeared that some Defendants had served answers, the Court declined to dismiss

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the entire action without giving Defendants an opportunity to be heard. ECF No. 3; see also Fed.

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R. Civ. P. 41(a)(1)(A)(i). The Court ordered Defendants to file a statement that they either: (1) did

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not oppose Plaintiff’s Request, or (2) intended to oppose Plaintiff’s Request pursuant to the

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briefing schedule for motions set forth in the Civil Local Rules. ECF No. 3. The Court stated that

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if Defendants failed to file a statement, it would grant Plaintiff’s Request for dismissal without

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prejudice. Id.

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Although Wells Fargo filed an answer, ECF No. 10, Wells Fargo did not attach a certificate of
service, nor did the ECF system appear to transmit the answer to Plaintiff.
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CASE NO. 12-CV-00425-LHK
ORDER DISMISSING ACTION

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In response to the Court’s Order, six defendants filed statements, two did not. AES

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opposed the Request for dismissal and sought to be reimbursed fees and costs. ECF Nos. 34, 41.

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U.S. Bancorp did not oppose the Request for dismissal but requested an award of fees and costs.

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ECF No. 36. Sallie Mae, BofA, Wells Fargo, and Chase 2 filed separate statements of non-

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opposition to Plaintiff’s Request for dismissal without prejudice. ECF Nos. 35, 37, 38, 42.

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Discover and AmEx did not file statements.

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II.

Legal Standard

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Pursuant to Federal Rule of Civil Procedure 41(a), a plaintiff may dismiss an action without

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a court order by filing “a notice of dismissal before the opposing party serves either an answer or a

United States District Court
For the Northern District of California

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motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i).

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As the Ninth Circuit has stated:

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Under Rule 41(a)(1), a plaintiff has an absolute right to voluntarily dismiss
his action prior to service by the defendant of an answer or a motion for summary
judgment. A plaintiff may dismiss his action so long as the plaintiff files a notice of
dismissal prior to the defendant’s service of an answer or motion for summary
judgment. The dismissal is effective on filing and no court order is required. The
plaintiff may dismiss some or all of the defendants, or some or all of his claims,
through a Rule 41(a)(1) notice. The filing of a notice of voluntary dismissal with
the court automatically terminates the action as to the defendants who are the
subjects of the notice. Unless otherwise stated, the dismissal is ordinarily without
prejudice to the plaintiff’s right to commence another action for the same cause
against the same defendants. Such a dismissal leaves the parties as though no action
had been brought. Once the defendant serves an answer or a motion for summary
judgment, however, the plaintiff may no longer voluntarily dismiss under Rule
41(a)(1), but must file a motion for voluntary dismissal under Rule 41(a)(2). Unlike
a Rule 41(a)(1) notice of dismissal, a Rule 41(a)(2) motion requires court approval.

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Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (internal citations omitted).
Pursuant to Federal Rule of Civil Procedure 41(a)(2), “Except as provided in Rule 41(a)(1),

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an action may be dismissed at the plaintiff’s request only by court order, on terms that the court

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considers proper.” “A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the

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Although Chase filed a statement of non-opposition to Plaintiff’s Request, Chase “reserve[d] its
rights under Federal Rule of Civil Procedure 41(d) to seek its costs and attorney’s fees should
Plaintiff re-file this action or re-file an action based on the same claim against Chase.” ECF No.
42, at 1-2. However, Chase’s right to reimbursement under Rule 41(d) is not currently before the
Court. Sallie Mae, BofA, and Wells Fargo did make any reservations in their statements of nonopposition.
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CASE NO. 12-CV-00425-LHK
ORDER DISMISSING ACTION

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district court’s sound discretion and the court’s order will not be disturbed unless the court has

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abused its discretion.” Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir.

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1989) (citing Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980)).

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III.

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Plaintiff requests to voluntarily dismiss all defendants without prejudice. The Court

Analysis

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construes this Request as a notice of voluntary dismissal pursuant to Federal Rule of Civil

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Procedure 41(a)(1)(A)(i). Only Wells Fargo and BofA have filed answers, and only BofA has

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actually served an answer. All other Defendants have served neither answers nor motions for

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summary judgment. Plaintiff was therefore entitled to voluntarily dismiss Discover, Chase, U.S.

United States District Court
For the Northern District of California

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Bancorp, AES, Sallie Mae, Wells Fargo, and AmEx by filing a notice of dismissal. Fed. R. Civ. P.

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41(a)(1)(A)(i) (“plaintiff may dismiss an action without a court order by filing a notice of dismissal

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before the opposing party serves either an answer or a motion for summary judgment order”)

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(emphasis added). Moreover, Plaintiff’s Request to dismiss without prejudice Discover, Chase,

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U.S. Bancorp, AES, Sallie Mae, Wells Fargo, and AmEx 3 “automatically terminate[d] the action as

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to [these] defendants.” Wilson, 111 F.3d at 692. Accordingly, Plaintiffs’ claims against Discover,

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Chase, U.S. Bancorp, AES, Sallie Mae, Wells Fargo, and AmEx are DISMISSED WITHOUT

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PREJUDICE.

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Both U.S. Bancorp and AES request reimbursement of fees and costs. A court may impose

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costs and attorneys’ fees upon a plaintiff who is granted a voluntary dismissal under Fed. R. Civ. P.

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41(a)(2). Stevedoring Servs of Am., 889 F.2d at 921. Rule 41(a)(2) applies to a voluntary dismissal

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only if a defendant files an answer or a motion for summary judgment before a plaintiff seeks to

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voluntarily dismiss an action. Therefore, 41(a)(2) does not apply here because AES and U.S.

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Bancorp did not serve either an answer or a motion for summary judgment before Plaintiff filed his

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Request for dismissal. See Wilson, 111 F.3d at 692. Instead, Plaintiff’s claims against U.S.

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On February 29, 2012, Plaintiff filed a separate Request that the action be dismissed against only
AmEx with prejudice. ECF No. 43. However, because AmEx was terminated upon Plaintiff’s
filing of his original Request, Plaintiff’s Request as to only AmEx is MOOT. Nevertheless, if
Plaintiff and AmEx have entered into an enforceable contract barring the parties from further
litigation over this controversy, it is possible that such a contract would have the same effect as a
dismissal with prejudice.
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CASE NO. 12-CV-00425-LHK
ORDER DISMISSING ACTION

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Bancorp and AES were dismissed upon Plaintiff’s filing of his Request for dismissal pursuant to

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Rule 41(a)(1), which automatically terminates the action without a court order and without an

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awarding of fees and costs. Id. Thus, U.S. Bancorp and AES cannot seek fees and costs pursuant

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to Fed. R. Civ. P. 41(a)(2). Accordingly, U.S. Bancorp’s and AES’s requests for fees and costs are

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DENIED.

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AES’s argument that it cannot be dismissed without prejudice pursuant to a Rule

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41(a)(1)(A)(i) notice because it has “responded to the Complaint,” is unavailing. ECF No. 34 ¶ 2

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(citing ECF No. 4). AES’s “response” was in the form of a motion to dismiss, not an answer or a

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motion for summary judgment, as required to trigger Rule 41(a)(2). The Ninth Circuit has held

United States District Court
For the Northern District of California

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that a pending motion to dismiss is not the equivalent of a motion for summary judgment for

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purposes of Rule 41(a)(1)(A)(i). See Miller v. Reddin, 422 F.2d 1264, 1266 (9th Cir. 1970). The

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mere fact that BofA, one of AES’s codefendants, had served an answer prior to Plaintiff’s Request

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for dismissal does not vitiate Plaintiff’s “absolute right to voluntarily dismiss . . . some or all of the

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defendants” “so long as the plaintiff files a notice of dismissal prior to the defendant’s service of an

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answer or motion for summary judgment.” Wilson, 111 F.3d at 692. Accordingly, AES was

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automatically terminated upon the filing of Plaintiff’s Request for dismissal without prejudice.

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However, because BofA did serve an answer prior to Plaintiff’s filing of his Request for

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dismissal, a court order is required to dismiss BofA pursuant to Rule 41(a)(2). Nevertheless, BofA

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filed a statement of non-opposition to Plaintiff’s Request for dismissal without prejudice. See ECF

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Nos. 37. Moreover, BofA does not request that the dismissal contain any special terms. See id.

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Accordingly, Plaintiff’s claims against BofA are DISMISSED WITHOUT PREJUDICE. 4

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IV.

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For the foregoing reasons, the Court ORDERS as follows:

Conclusion

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Even if Wells Fargo had actually served its answer, Wells Fargo also filed a statement of nonopposition to Plaintiff’s Request for dismissal without prejudice, and Wells Fargo did not request
any special conditions. ECF No. 38. Accordingly, Plaintiff’s claims against Wells Fargo would be
dismissed without prejudice even if Rule 41(a)(2), rather than Rule 41(a)(1)(A)(i), applied to Wells
Fargo.
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CASE NO. 12-CV-00425-LHK
ORDER DISMISSING ACTION

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1. Plaintiff’s claims against Discover, Chase, U.S. Bancorp, AES, Sallie Mae, Wells

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Fargo, and AmEx were DISMISSED WITHOUT PREJUDICE upon Plaintiff’s

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filing of his Request for dismissal.

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2. U.S. Bancorp’s and AES’s requests for fees and costs are DENIED.

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3. Plaintiff’s Request for dismissal is GRANTED as to BofA. Accordingly Plaintiff’s

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claims against BofA are DISMISSED WITHOUT PREJUDICE.
4. The case management conference set for May 31, 2012, and all scheduled hearings
are hereby VACATED. All pending motions are hereby TERMINATED.
5. The Clerk shall close the file.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: May 18, 2012

_________________________________
LUCY H. KOH
United States District Judge

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CASE NO. 12-CV-00425-LHK
ORDER DISMISSING ACTION

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