Atooi Aloha, LLC, by Millicent Andrade and Craig B. Stanley, Its Managing Members et al v. Gaurino et al

Filing 481

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNTERCLAIM re 479 - Signed by JUDGE JILL A. OTAKE on 7/16/2019. (emt, )COURT'S CERTIFICATE of Service - Millicent Andrade and Craig B. Stanley have been served by First Class Mail to the address of record on July 16, 2019. Registered Participants of CM/ECF received the document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

MILLICENT ANDRADE, et al.,

CIV. NO. 16-00347 JAO-WRP

Plaintiffs,
ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS COUNTERCLAIM

vs.
ABNER GAURINO, et al.,
Defendants.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNTERCLAIM
Defendants Abner Gaurino, Aurora Guarino, and Abigail Gaurino move to
dismiss with prejudice their counterclaim filed on June 15, 2017. For the reasons
stated below, the Court GRANTS the Motion.
I. BACKGROUND
As the parties and the Court are familiar with the history of this case, the
Court includes only those facts relevant to the dismissal.
Plaintiffs Millicent Andrade, Craig Stanley, The Edmon Keller and
Cleavette Mae Stanley Family Trust (the “Trust”), and their limited liability
company Atooi Aloha, LLC, filed the Complaint on June 26, 2016. ECF No. 1.
On June 15, 2017, the Gaurino Defendants filed a counterclaim based on state law,
ECF No. 52, and Plaintiffs answered on July 10, 2017, ECF No. 75. For various

reasons stated on the record, Plaintiffs did not proceed to trial on July 8, 2019. The
Court dismissed the claims of Plaintiffs Stanley and the Trust with prejudice for
failure to prosecute and failure to comply with court orders and rules, pursuant to
Federal Rule of Civil Procedure (“FRCP”) 41(b). ECF No. 478 at 12. Then
Plaintiff Andrade moved for voluntary dismissal of the First Amended Complaint,
which was granted with prejudice. ECF No. 480 at 10–11.
Defendants move to dismiss the counterclaim with prejudice pursuant to
Federal Rule of Civil Procedure (“FRCP”) 41(a)(2). The Court may decide this
matter without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice for
the U.S. District Court for the District of Hawaii. For the below reasons, the Court
GRANTS the Motion.
II.
A.

LEGAL ANALYSIS

Rule 41(a)(2) Legal Standard
FRCP 41(a)(2) provides:
Except as provided in Rule 41(a)(1),1 an action may be
dismissed at the plaintiff’s 2 request only by court order, on
terms that the court considers proper. If a defendant has
pleaded a counterclaim before being served with the plaintiff’s
motion to dismiss, the action may be dismissed over the

1

A 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; or (ii) a stipulation of dismissal signed by all parties who have
appeared.” Fed. R. Civ. P. 41(a)(1).
2
The Rule’s reference to “plaintiff” also refers to a counter-plaintiff. Fed. R. Civ.
P. 41(c).
2

defendant’s objection only if the counterclaim can remain
pending for independent adjudication. Unless the order states
otherwise, a dismissal under this paragraph (2) is without
prejudice.
Fed. R. Civ. P. 41(a)(2).
Decisions regarding motions for voluntary dismissal are left “to the district
court’s sound discretion and the court’s order will not be disturbed unless the court
has abused its discretion.” Westlands Water Dist. v. United States, 100 F.3d 94, 96
(9th Cir. 1996). A motion for voluntary dismissal should be granted “unless a
defendant can show that it will suffer some plain legal prejudice as a result.” Smith
v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citations omitted). “‘[L]egal
prejudice’ means ‘prejudice to some legal interest, some legal claim, some legal
argument.’” Id. at 976. Plain legal prejudice does not result due to uncertainty
from unresolved disputes or a threat of future litigation. Id. In addition, plain legal
prejudice does not exist “merely because the defendant will be inconvenienced by
having to defend in another forum or where a plaintiff would gain a tactical
advantage by that dismissal.” Id. Finally, incurring expenses defending against a
lawsuit does not constitute legal prejudice. Westlands, 100 F.3d at 97.
Courts make three determinations in exercising their discretion to allow
dismissal: “(1) whether to allow the dismissal at all; (2) whether the dismissal
should be with or without prejudice; and (3) what terms and conditions, if any,
should be imposed.” Burnette v. Godshall, 828 F. Supp. 1439, 1443 (N.D. Cal.
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1993), aff’d sub nom., Burnette v. Lockheed Missiles & Space Co., 72 F.3d 766
(9th Cir. 1995).
B.

Discussion
Defendants request that the dismissal be with prejudice, so that the parties

may not worry about further litigation on the claims. The Court, in its sound
discretion, finds that dismissal with prejudice is appropriate pursuant to FRCP
41(a)(2). Plaintiffs’ will not suffer plain legal prejudice from a dismissal. Even if
Plaintiffs have incurred expenses defending against the claim, this does not amount
to legal prejudice.
Accordingly, the Motion is GRANTED and Defendants’ counterclaim is
DISMISSED WITH PREJUDICE.
III.

CONCLUSION

For the reasons stated, the Court GRANTS WITH PREJUDICE
Defendants’ Motion to Dismiss the counterclaim.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 16, 2019.
/s/ Jill A. Otake________
Jill A. Otake
United States District Judge

CIVIL NO. 16-00347 JAO-WRP; ANDRADE v. GAURINO; ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS COUNTERCLAIM

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