Omni Innovations LLC v. Ascentive LLC et al

Filing 92

RESPONSE, by Defendants Ascentive LLC, Adam Schran, to 91 MOTION & Declaration to Stike Name from Lawsuit. (Attachments: # 1 Certificate of Service)(Newman, Derek)

Omni Innovations LLC v. Ascentive LLC et al

Doc. 92

Case 2:06-cv-01284-JCC

Document 92

Filed 12/31/2007

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DEFS.' RESPONSE TO MOT. TO STRIKE NAME FROM LAWSUIT - 1 CASE NO. 06-01284-JCC

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE OMNI INNOVATIONS, LLC, a Washington limited liability company, and EMILY ABBEY, Plaintiffs, v. ASCENTIVE, LLC, a Delaware limited liability company; ADAM SCHRAN, individually and as part of his marital community; JOHN DOES, I-X, Defendants. NO. 06-01284-JCC DEFENDANT'S RESPONSE TO PLAINTIFF EMILY ABBEY'S MOTION TO STRIKE NAME FROM LAWSUIT Note for Motion Calendar: January 4, 2008

I.

INTRODUCTION

Defendants Ascentive, LLC and Adam Schran (together, "Defendants") oppose the Motion to Strike Name from Lawsuit (the "Motion") filed by Emily Abbey ("Abbey") (Dkt. #91). The Federal Rules of Civil Procedure bar Abbey from requesting a partial dismissal of the claims in this action; accordingly, this Court should deny Abbey's Motion in its entirety. In the alternative, the Court should dismiss Abbey's claims with prejudice. As a second alternative, if the Court decides to allow Abbey to withdraw her

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Dockets.Justia.com

Case 2:06-cv-01284-JCC

Document 92

Filed 12/31/2007

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claims without prejudice, thereby allowing her to re-file a lawsuit in which she claims she has no interest, it should require her to pay Defendants' reasonable attorneys' fees and costs incurred in defending this action. II. FACTS

The emails attached to Abbey's Motion indicate she has some sort of fee agreement with her former counsel, and it is likely her agreement permitted her lawyer to name her as a plaintiff in this case despite her current protests. (Motion Ex. D ("once you are removed from the Ascentive case, our fee agreement is no longer effective").) There has been almost no discovery in this case, and Defendants have not had an opportunity to test the veracity of the alleged facts in Abbey's Motion. Further, Defendants have had to spend considerable amounts of time and money defending themselves in this lawsuit since it was filed in September 2006. If Abbey is dismissed from the case, Plaintiffs may re-file their Motion for Change of Venue, based on the absence of a plaintiff who resides in this judicial district. (See Dkt. # 86.) If Abbey is dismissed as a party, Defendants' ability to conduct discovery regarding her involvement in this lawsuit will be limited. Abbey's dismissal would cause Defendants to suffer considerable prejudice. This Court should deny the relief she requests in the Motion. III. A. ARGUMENT

The Federal Rules of Civil Procedure Prohibit a Partial Dismissal of the Sort Abbey Requests in Her Motion

FED.R.CIV.P. 41(a)(1)(A) provides as follows: (a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss

DEFS.' RESPONSE TO MOT. TO STRIKE NAME FROM LAWSUIT - 2 CASE NO. 06-01284-JCC

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Case 2:06-cv-01284-JCC

Document 92

Filed 12/31/2007

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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. Id. (emphasis added). Defendants have filed an answer; consequently, Abbey cannot dismiss this action without a court order. Further, Abbey may not dismiss her own claims even with a court order unless that order disposes of all claims in this action, not just those brought by Abbey. FED.R.CIV.P. 41(a)(1)(B) provides that "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper". The rule speaks to the dismissal of an action in its entirety, not just one party's claims within an action; it does not apply to the dismissal of fewer than all claims in a lawsuit. See Gobbo Farms & Orchards v. Poole Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996)("Gobbo offers no authority, and we have found none, to support its contention that Rule 41(a) applies to dismissal of less than all claims in an action"); Smith, Kline & French Laboratories v A. H. Robins Co. 61 F.R.D. 24, 29, 181 USPQ 12 (E.D.Pa. 1973) ("when Rule 41(a) refers to dismissal of an `action', there is no reason to suppose that the term is intended to include the separate claims which make up an action"). Since this lawsuit involves more than one plaintiff, the action will not be dismissed in its entirety even if this Court grants Abbey's Motion. Consequently, granting the Motion would violate the terms of FED.R.CIV.P. 41(a)(1)(B). Contrary to Abbey's assertions, Defendants will suffer considerable prejudice if Abbey is allowed to dismiss her claims without prejudice and without payment of Defendants' reasonable attorneys' fees and costs. Defendants have had to incur significant costs in defending this lawsuit since Plaintiffs initiated it in September 2006. Defendants will still be defending this lawsuit even if Abbey is permitted to withdraw her claims. They may even face another motion for change of venue to the Eastern District of Washington ­ based on Abbey's withdrawal ­ when the Court lifts the current stay of
DEFS.' RESPONSE TO MOT. TO STRIKE NAME FROM LAWSUIT - 3 CASE NO. 06-01284-JCC

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Case 2:06-cv-01284-JCC

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proceedings. Defendants' discovery regarding Abbey will also be considerably restricted if she is no longer a party. Given the prejudice Defendants will face if this Court permits Abbey to withdraw without prejudice and without payment of Defendants' fees, this Court should deny Abbey's Motion. See United States ex rel. Doe v Dow Chem. Co., 343 F3d 325, 330 (5th Cir. 2003) ( district court properly denied motion for voluntary dismissal under FED.R.CIV.P. 41(a)(2) where motion was filed nine months after filing suit, and both sides had filed responsive pleadings and motions). B. This Court Should Either Dismiss Abbey's Claims With Prejudice or Condition Her Dismissal on An Award of Fees and Costs to Defendants

If a dismissal is without prejudice to the plaintiff, the later it is granted the more likely it is to harm the defendant by subjecting him to the potential of additional litigation expenses. See, e.g., Williams v. Ford Motor Credit Co., 627 F.2d 158, 160 (8th Cir. 1980) (district court abused its discretion by granting dismissal at end of trial, thereby subjecting the defendant to greater litigation expense). If this Court is inclined to dismiss Abbey's claims fifteen (15) months after this lawsuit commenced, then it should dismiss her case with prejudice to prevent Abbey from subjecting Defendants to further litigation costs, should she re-file later. Alternatively, the Court should require Abbey to pay Defendants' reasonable attorneys' fees and costs incurred in defending this action. This Court has the discretion to condition dismissal under FED.R.CIV.P. 41(a)(2) on an award of costs and attorney's fees to Defendants. Mercer Tool Corp. v Friedr. Dick GmbH, 175 F.R.D. 173, 176 (E.D.N.Y. 1997); see also Anderberg v Masonite Corp., 176 F.R.D. 682, 687 (N.D.Ga. 1997) (court may cure prejudice to defendant by conditioning dismissal on moving party's payment of costs and expenses borne by other party in action).

DEFS.' RESPONSE TO MOT. TO STRIKE NAME FROM LAWSUIT - 4 CASE NO. 06-01284-JCC

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]

Case 2:06-cv-01284-JCC

Document 92

Filed 12/31/2007

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IV.

CONCLUSION

This Court should deny Abbey's Motion, dismiss Abbey's claims with prejudice or require her to pay Defendants' reasonable attorneys' fees and costs incurred in defending this action.

DATED this 31st day of December, 2007.

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, No. 26967 Randall Moeller, No. 21094

Attorneys for Defendants

NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610 Seattle, Washington 98104 [phone]