Jackson et al v. City of Mountlake Terrace Washington et al

Filing 30

ORDER REGARDING PLAINTIFFS' RESPONSE TO THE CITY'S MOTION FOR SUMMARY JUDGMENT by Judge James L. Robart. Plaintiffs' 29 Response is construed by court as a Motion to Dismiss, Noted for 3/30/2017. Plaintiffs' are ORDERED to file a memorandum by 3/23/2017. Defendants are ORDERED to respond to Plaintiff's 29 Motion to Dismiss and supplemental memorandum within seven (7) days of the date of this Order. (swt)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ROBERT LYNN JACKSON, JR., et al., 11 Plaintiffs, 12 13 14 v. ORDER REGARDING PLAINTIFFS’ RESPONSE TO THE CITY’S MOTION FOR SUMMARY JUDGMENT CITY OF MOUNTLAKE TERRACE, et al., Defendants. 15 16 CASE NO. C16-1282JLR The court has received Plaintiffs’ response (Resp. (Dkt. # 29)) to Defendants City 17 of Mountlake Terrace (“the City”), Brian Moss and Matt Porter’s motion for summary 18 judgment (SJ Mot. (Dkt. # 19)). In their response, Plaintiffs state that they “seek[] to 19 drop their remaining claims pursuant to [Federal Rule of Civil Procedure] 41.” (Resp. at 20 21 22 ORDER - 1 1 2.) Rule 41(a)(2) provides that “an action may be dismissed at the plaintiff’s request only 2 by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). 1 3 The court should grant a motion for voluntary dismissal unless the defendant 4 shows it will suffer some plain legal prejudice as a result. See Waller v. Fin. Corp. of 5 Am., 828 F.2d 579, 583 (9th Cir. 1987); Hamilton v. Firestone Tire & Rubber Co., 679 6 F.2d 143, 145 (9th Cir. 1982). A defendant may show plain legal prejudice by 7 demonstrating that voluntary dismissal threatens actual legal rights or may result in 8 extreme or unreasonable monetary or other burdens. See Watson v. Clark, 716 F. Supp. 9 1354, 1356 (D. Nev.1989), aff’d, 909 F.2d 1490 (9th Cir. 1990). Factors to consider in 10 determining legal prejudice may include: (1) the defendant’s effort and expense in 11 preparing for trial; (2) the plaintiff’s excessive delay and lack of diligence in prosecuting 12 the action; (3) insufficient explanation of the need to take a dismissal; and (4) the fact that 13 the defendant has moved for summary judgment. See Fischer v. Zespri Fresh Produce N. 14 Am., Inc., No. 1:07-CV-00610LJO, 2007 WL 2385074, at *9 (E.D. Cal. Aug. 17, 2007) 15 (citing Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987); Grover v. Eli Lilly 16 & Co., 33 F.3d 716, 718 (6th Cir. 1994); and United States v. Outboard Marine Corp., 17 789 F.2d 497, 502 (7th Cir. 1986)). 18 19 The court construes Plaintiffs’ response as a motion to dismiss their complaint under Rule 41(a)(2), and DIRECTS the Clerk to note it as such on the court’s docket for 20 1 21 22 Plaintiffs are not eligible to dismiss this action by filing a notice of dismissal because the remaining Defendants have filed both an answer and a motion for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A)(i). In addition, the parties have not filed a joint stipulation of dismissal. See Fed. R. Civ. P. 41(a)(1)(A)(ii). ORDER - 2 1 Thursday, March 30, 2017. In addition, the court notes that Defendants have a pending 2 motion for summary judgment. (See SJ Mot.) Accordingly, the court ORDERS 3 Plaintiffs to file a memorandum stating whether they seek a voluntary dismissal with 4 prejudice or without prejudice no later than Thursday, March 23, 2017. If Plaintiffs seek 5 a dismissal without prejudice, the court further ORDERS Plaintiffs to explain in the same 6 memorandum why they are so entitled. See Pace v. S. Express Co., 409 F.2d 331, 334 7 (7th Cir.1969) (citing 5 Moore’s Federal Practice § 41.05(1) (2d ed. 1968)) (holding that 8 the district court properly denied dismissal without prejudice where discovery was 9 considerably advanced and defendant’s motion for summary judgment was pending). 10 11 Plaintiffs shall limit their memorandum to no more than six pages. The court ORDERS Defendants to respond to Plaintiffs’ Rule 41(a)(2) motion to 12 dismiss and supplemental memorandum within seven days of the filing date of this order 13 and indicate if they have any objection to the dismissal of this case. Defendants shall 14 limit their response to no more than six pages. Plaintiffs may file a reply to Defendants’ 15 response no later than Thursday, March 30, 2017. Plaintiffs shall limit their reply to 16 more than three pages. 17 Dated this 21st day of March, 2017. 18 19 A 20 JAMES L. ROBART United States District Judge 21 22 ORDER - 3

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