Martinez et al v. PRLAP, INC et al

Filing 45

ORDER THAT Plaintiff Daniel G. Martinezs Motion to Voluntarily Dismiss Without Prejudice 9 is GRANTED. Gloria Juarez, Paul Kim, Amy Lemus, MTC FINANCIAL, Malcolm Cisneros Law Group, Anthony Tran, Thomas Zsidro, Juan Carillo and Tina M Courtney terminated. Signed by Judge Miranda M. Du on 7/20/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANIEL G. MARTINEZ, et. al.,

Case No. 2:12-cv-00345-MMD-RJJ

Plaintiffs,

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ORDER
v.

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[Plf.’s Motion to Voluntarily Dismiss
Without Prejudice – dkt. no. 9]

PRLAP, Inc., et al.,
Defendants.

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Before this Court is Plaintiff Daniel G. Martinez’s Motion to Voluntarily Dismiss

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Without Prejudice. (Dkt. no. 9.)

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I.

BACKGROUND

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Plaintiffs Daniel G. Martinez, Tina M. Courtney, and Thomas Zsidro filed this

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action in state court on October 14, 2011, against PRLAP, Inc. (“PRLAP”), the original

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trustee of the deed of trust, for breach of fiduciary duties arising out of the alleged filing

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of fraudulent documents with the county recorder relating to a property that had been the

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subject of foreclosure proceedings. The property was sold at a foreclosure sale on

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October 24, 2011. On January 31, 2012, Clark County District Judge Kenneth Corey

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granted PRLAP’s Motion to Dismiss as to Plaintiffs Courtney and Zsidro.

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subsequently filed a First Amended Complaint on February 10, 2012, alleging claims

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against PRLAP, Inc., MTC Financial Inc. d/b/a Trustee Corps (“Trustee Corps”) (the

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substituted trustee), and individual defendants Paul Kim, Juan Carrillo, Gloria Juarez,

Martinez

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Amy Lemus, Anthony Tran, Susan Dana, and Diane Derr. Trustee Corps removed this

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action on March 1, 2012. On July 11, 2012, the Court denied Plaintiff Martinez’s Motion

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to Remand. (See dkt. no. 41.)

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II.

DISCUSSION

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Pursuant to Fed. R. Civ. P. 41(a)(2), “an action may be dismissed at the plaintiff's

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request only by court order, on terms that the court considers proper.” The purpose of

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Rule 41(a)(2) “is to permit a plaintiff to dismiss an action . . . so long as the defendant will

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not be prejudiced or unfairly affected by dismissal.” Stevedoring Servs. of Am. v. Armilla

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Intern. B. V., 889 F.2d 919, 921 (9th Cir. 1989) (internal quotations omitted). “[T]he

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decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound

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discretion of the District Court.” Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d

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143, 145 (9th Cir. 1982).

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Martinez seeks to dismiss his suit against Trustee Corps, Paul Kim, Juan Carillo,

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Gloria Juarez, Amy Lemus, and Anthony Tran. The Court finds that Martinez’s request

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will not unfairly prejudice these defendants. Martinez sought dismissal only days after

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these Defendants filed their Answer to the Complaint and about two weeks after Trustee

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Corps filed its petition for removal. Further, the Court will not award these defendants

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attorneys’ fees or costs.

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The Court also notes that PRLAP’s Motion to Dismiss in state court was granted

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as to Plaintiffs Courtney and Zsidro on January 31, 2012. (See Dkt. no. 44-D.) Given

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that Martinez, as a pro se litigant, was prohibited from pursuing claims on behalf of

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Courtney and Zsidro in his First Amended Complaint, see Simon v. Hartford Life, Inc.,

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546 F.3d 661, 664-65 (9th Cir. 2008), the only remaining litigants in this case are Plaintiff

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Martinez and Defendants PRLAP, Dana, and Derr.

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III.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED THAT Plaintiff Daniel G. Martinez’s

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Motion to Voluntarily Dismiss Without Prejudice (dkt. no. 9) is GRANTED.

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IT IS FURTHER ORDERED THAT the Office of the Clerk shall terminate Plaintiffs

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Thomas Zsidro and Tina M. Courtney pursuant to PRLAP’s Motion to Dismiss (see dkt.

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no. 44-D).

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ENTERED THIS 20th day of July 2012.

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UNITED STATES DISTRICT JUDGE
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