Caldwell et al v. Townsend Farms, Inc. et al
Filing
88
ORDER GRANTING PLAINTIFF'S MOTION TO VOLUNTARILY DISMISS PLAINTIFF'S CLAIMS WITHOUT PREJUDICE AND WITHOUT PAYMENT OF COSTS re 79 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/31/2014. "For the foregoing reasons, t he Caldwells' motion is granted, and Purely Pomegranate's request is denied." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JENABE CALDWELL and MOTOKO
CALDWELL, a married couple,
individually and on behalf of
all others similarly
situated,
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
TOWNSEND FARMS, INC., an
)
Oregon corporation; PURELY
)
POMEGRANATE, INC., a
)
California corporation;
)
FALLON TRADING CO., INC., a
)
Pennsylvania corporation;
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UNITED JUICE CORP., a New
)
Jersey corporation; and DOES )
1 through 100 inclusive,
)
)
Defendants.
)
_____________________________ )
Civ. No. 13-00408-SOM-RLP
ORDER GRANTING PLAINTIFF’S
MOTION TO VOLUNTARILY DISMISS
PLAINTIFF’S CLAIMS WITHOUT
PREJUDICE AND WITHOUT PAYMENT
OF COSTS
ORDER GRANTING PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS
PLAINTIFF’S CLAIMS WITHOUT PREJUDICE AND WITHOUT PAYMENT OF COSTS
I.
INTRODUCTION.
On June 10, 2013, Plaintiffs and Hawaii residents
Jenabe Caldwell and Motoko Caldwell filed a Complaint against
Townsend Farms, Inc., an Oregon corporation, in the Circuit Court
of the First Circuit of the State of Hawaii.
On July 11, 2013,
the Caldwells filed a Class Action First Amended Complaint
against Townsend Farms, Inc., and added Purely Pomegranate as a
co-defendant.
On August 22, 2013, Purely Pomegranate filed a
Notice of Removal, removing the case from state court to federal
court based on diversity jurisdiction, pursuant to 28 U.S.C.
§ 1332(d).
ECF No. 1.
On November 18, 2013, Magistrate Judge
Richard L. Puglisi gave the Caldwells leave to file a Second
Amended Complaint.
On November 19, 2013, the Caldwells filed
their Second Amended Complaint against Townsend Farms and Purely
Pomegranate, adding Fallon Trading Co., Inc., a Pennsylvania
corporation, United Juice Corp., a New Jersey corporation, and
Does 1 through 100, inclusive, as defendants.
Proceedings
continued until July 1, 2014, when the Caldwells filed
Plaintiffs’ Motion to Voluntarily Dismiss Plaintiffs’ Claims,
Without Prejudice.
ECF No. 79.
In their motion, brought under Rule 41(a)(2) of the
Federal Rules of Civil Procedure, the Caldwells seek leave to
voluntarily dismiss their claims against all parties, without
prejudice and without payment of Defendants’ costs, so that they
can consolidate their claims in a class action lawsuit in the
United States District Court for the Central District of
California.
ECF No. 79, PageID # 1198.
In response, on July 11, Defendant United Juice Corp.
filed its Statement of No Opposition re: Motion to Dismiss, in
which it stated that it had no opposition to the Caldwells’
motion to voluntarily dismiss their claims.
ECF No. 84.
Similarly, on July 15, 2014, Defendant Fallon Trading Co. filed
its Statement of No Position as to Plaintiffs’ Motion to
Voluntarily Dismiss Plaintiffs’ Claims without Prejudice, taking
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“no position on Plaintiffs’ stated intent to dismiss the instant
lawsuit.”
ECF No. 85, PageID # 1224.
On July 21, 2014,
Defendant Townsend Farms filed its Statement of No Opposition and
Non-Appearance of Counsel.
Defendant Purely Pomegranate filed its Statement of
Position to Plaintiff’s Motion on July 21, 2014.
ECF No. 87.
In
this document, Purely Pomegranate indicates that it does not
oppose the Caldwells’ motion to dismiss their claims but asks the
court to deny the Caldwells’ request for a waiver of costs as a
condition of dismissal pursuant to Rule 41(d) of the Federal
Rules of Civil Procedure.
Id., PageID # 1233.
Purely
Pomegranate argues that ordering the Caldwells to pay the costs
of this action, including attorney’s fees, will deter “forumshopping.”
Id.
Because no Defendant opposes the Caldwells’ motion to
voluntarily dismiss, the only issue before the court is whether
the Caldwells must pay costs and attorneys’ fees as a condition
of dismissal.
Purely Pomegranate has failed to demonstrate that the
Caldwells should pay costs as a condition of dismissal.
The
Caldwells’ motion to voluntarily dismiss without payment of costs
is therefore granted.
Purely Pomegranate’s request that the
Caldwells pay costs and attorneys’ fees as a condition of
dismissal is denied.
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II.
STANDARD OF REVIEW.
Rule 41(a)(2) of the Federal Rules of Civil Procedure
states that, “[e]xcept as provided in Rule 41(a)(1), an action
may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper.”
A dismissal is
without prejudice unless the court states otherwise.
Civ. P. Rule 41(a)(2).
Fed. R.
In Stevedoring Services of America v.
Armilla International B.V., 889 F.2d 919, 921 (9th Cir. 1989),
the Ninth Circuit noted that “[a]lthough costs and attorney fees
are often imposed upon a plaintiff who is granted a voluntary
dismissal under Fed. R. Civ. P. 41(a)(2), no circuit court has
held that payment of the defendant’s costs and attorney fees is a
prerequisite to an order granting voluntary dismissal.”
Furthermore, the court noted, “several courts have specifically
held that such payment is not required.”
Id.; see also Westlands
Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996).
When determining whether costs and attorney fees should
be a condition of dismissal, a court considers the following
factors: “(1) any excessive and duplicative expense of a second
litigation; (2) the effort and expense incurred by a defendant in
preparing for trial; (3) the extent to which the litigation has
progressed; and (4) the plaintiff’s diligence in moving to
dismiss.”
8 James Wm. Moore, Moore’s Federal Practice
§ 41.40[10][d][I] (3d ed. 2013).
The merits of the plaintiff’s
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case may be relevant to such a determination, although the Ninth
Circuit has declined to decide whether a plaintiff’s good faith
is a factor in considering costs.
Stevedoring, 889 F.2d at 922.
Dismissal and payment of costs under Rule 41(a)(2) is left to the
court’s discretion and “will not be disturbed unless the court
has abused its discretion.”
Id. at 921.
Rule 41(d) of the Federal Rules of Civil Procedure
gives a court the discretion to order a plaintiff to pay costs,
but only when a plaintiff has previously dismissed an action and
subsequently files a second action that includes the same claim:
If a plaintiff who previously dismissed an
action in any court files an action based on
or including the same claim against the same
defendant, the court: (1) may order the
plaintiff to pay all or part of the costs of
that previous action; and (2) may stay the
proceedings until the plaintiff has complied.
Fed. R. Civ. P. 41(d) (emphasis added).
Because the purpose of
the payment of costs is the same under Rule 41(a)(2) and Rule
41(d), the “same standard for the type of costs awarded should
apply.”
1996).
Esquivel v. Arau, 913 F.Supp. 1382, 1388 (C.D. Cal.
Thus, the test for Rule 41(a)(2) applies to Rule 41(d).
Id.
III.
ANALYSIS.
A.
Rule 41(d).
Purely Pomegranate asserts that the Caldwells should
pay costs and attorney fees as a condition of dismissal pursuant
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to Rule 41(d) of the Federal Rules of Civil Procedure.
87, PageID # 1233.
ECF No.
Citing Aloha Airlines, Inc. v. Mesa Air
Group, Inc., No. 07-00007, 2007 WL 2320672, at *2 (D. Haw. Aug.
10, 2007), Purely Pomegranate states that the purpose of Rule
41(d) is to “deter vexatious litigation and forum shopping,” as
well as to “compensate the defendant for the unnecessary expense
of defending against the plaintiff’s litigation.”
Id. (internal
citation omitted).
Rule 41(d) is inapplicable, as it applies when a
“plaintiff who previously dismissed an action in any court files
an action based on or including the same claim against the same
defendant.”
Fed. R. Civ. P. Rule 41(d) (emphasis added).
Nothing in the record establishes that the Caldwells have
previously dismissed a related action.
B.
Rule 41(a)(2).
When determining whether costs should be a condition of
dismissal, the court first considers whether there is “any
excessive and duplicative expense of a second litigation.”
Moore’s Federal Practice § 41.40[10][d][I].
The Caldwells
contend that they should not pay costs because dismissing their
motion and litigating as a class action in California will
support the “goals of efficiency and conservation of resources,”
as well as avoid the “likelihood of duplicative motion-practice
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and inconsistent rulings” by consolidating their suit with the
suits of others.
ECF No. 79, PageID # 1206.
On the other hand, Purely Pomegranate argues that the
Caldwells should pay costs because they have engaged in vexatious
litigation and forum shopping.
In support of this assertion of
forum shopping, Purely Pomegranate alleges that “[p]laintiffs’
counsel filed identical class actions in nine different
districts.”
ECF No. 87, PageID # 1233 (emphasis added).
The
Caldwells’ counsel may have filed separate actions in nine
different districts on behalf of other clients, but there is no
evidence that the Caldwells have done so, and Purely Pomegranate
does not offer any citations of cases filed in other
jurisdictions to support this allegation.
Purely Pomegranate has
failed to demonstrate that the Caldwells are forum shoppers or
vexatious litigants, and thus has failed to show “excessive” or
“duplicative” expense.
The second and third factors courts consider when
determining whether cost should be a condition of dismissal are
“the effort and expense incurred by a defendant in preparing for
trial,” and the “extent to which the litigation has progressed.”
Moore’s Federal Practice § 41.40[10][d][I].
The Caldwells
contend that litigation has not progressed far because the
parties have “focused on mediation and jurisdictional issues.”
ECF No. 79, PageID # 1206.
Courts impose few or no conditions
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early in a case when the defendant faces, at most, the mere
prospect of relitigation in another forum.
Holiday Queen Land
Corp. V. Baker, 489 F.2d 1031, 1032 (5th Cir. 1974).
30, 3014, the litigation has progressed little.
As of July
No substantive
motions have been filed, and the non-jury trial is set for July
22, 2015, about a year from now.
Furthermore, a defendant is “entitled only to recover,
as a condition of dismissal under Fed. R. Civ. P. 41(a)(2),
attorneys[’] fees or costs for work which is not useful in
continuing litigation between the parties.”
F.3d 650, 652 (9th Cir. 1993).
Koch v. Hankins, 8
The work that Purely
Pomegranate’s counsel has done in preparation for this action in
this court can presumably be used in the class action suit or in
any subsequent action raising the same claims.
The final factor that the court must consider is “the
plaintiff’s diligence in moving to dismiss.”
The Caldwells argue
that they have been diligent in filing their motion to dismiss,
doing so “once it became apparent that this case would be more
properly litigated in California.”
ECF No. 79, PageID # 1206.
Although the case has been pending for about a year now, no
substantive motions have been filed and the trial date is set for
a year from now.
It might not have been immediately apparent
that a class action in California was appropriate.
Purely
Pomegranate has provided no evidence that the Caldwells were late
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or remiss in filing their motion to dismiss.
As a result, the
court determines that the Caldwells have been diligent in moving
to dismiss.
After examining the four factors relevant to a
determination of whether costs should be a condition of a
voluntary dismissal pursuant to Rule 41(a)(2), the court
determines that Purely Pomegranate has failed to demonstrate that
the Caldwells should pay its costs and attorneys’ fees.
The
Caldwells’ motion to voluntarily dismiss their claims against all
parties without prejudice and without an award of costs is
granted.
Purely Pomegranate’s request that dismissal be
conditioned on the Caldwells’ payment of costs and attorneys’
fees is denied.
IV.
CONCLUSION
For the foregoing reasons, the Caldwells’ motion is
granted, and Purely Pomegranate’s request is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 31, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Caldwell v. Townsend Farms, Inc.; Civ. No. 13-00408 SOM-RLP; ORDER GRANTING
PLAINTIFF’S MOTION TO VOLUNTARILY DISMISS PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
AND WITHOUT PAYMENT OF COSTS.
9
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