Jackson et al v. City of Mountlake Terrace Washington et al
Filing
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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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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ROBERT LYNN JACKSON, JR., et
al.,
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Plaintiffs,
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v.
ORDER REGARDING
PLAINTIFFS’ RESPONSE TO
THE CITY’S MOTION FOR
SUMMARY JUDGMENT
CITY OF MOUNTLAKE
TERRACE, et al.,
Defendants.
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CASE NO. C16-1282JLR
The court has received Plaintiffs’ response (Resp. (Dkt. # 29)) to Defendants City
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of Mountlake Terrace (“the City”), Brian Moss and Matt Porter’s motion for summary
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judgment (SJ Mot. (Dkt. # 19)). In their response, Plaintiffs state that they “seek[] to
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drop their remaining claims pursuant to [Federal Rule of Civil Procedure] 41.” (Resp. at
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ORDER - 1
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2.) Rule 41(a)(2) provides that “an action may be dismissed at the plaintiff’s request only
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by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). 1
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The court should grant a motion for voluntary dismissal unless the defendant
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shows it will suffer some plain legal prejudice as a result. See Waller v. Fin. Corp. of
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Am., 828 F.2d 579, 583 (9th Cir. 1987); Hamilton v. Firestone Tire & Rubber Co., 679
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F.2d 143, 145 (9th Cir. 1982). A defendant may show plain legal prejudice by
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demonstrating that voluntary dismissal threatens actual legal rights or may result in
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extreme or unreasonable monetary or other burdens. See Watson v. Clark, 716 F. Supp.
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1354, 1356 (D. Nev.1989), aff’d, 909 F.2d 1490 (9th Cir. 1990). Factors to consider in
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determining legal prejudice may include: (1) the defendant’s effort and expense in
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preparing for trial; (2) the plaintiff’s excessive delay and lack of diligence in prosecuting
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the action; (3) insufficient explanation of the need to take a dismissal; and (4) the fact that
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the defendant has moved for summary judgment. See Fischer v. Zespri Fresh Produce N.
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Am., Inc., No. 1:07-CV-00610LJO, 2007 WL 2385074, at *9 (E.D. Cal. Aug. 17, 2007)
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(citing Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987); Grover v. Eli Lilly
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& Co., 33 F.3d 716, 718 (6th Cir. 1994); and United States v. Outboard Marine Corp.,
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789 F.2d 497, 502 (7th Cir. 1986)).
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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
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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
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Thursday, March 30, 2017. In addition, the court notes that Defendants have a pending
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motion for summary judgment. (See SJ Mot.) Accordingly, the court ORDERS
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Plaintiffs to file a memorandum stating whether they seek a voluntary dismissal with
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prejudice or without prejudice no later than Thursday, March 23, 2017. If Plaintiffs seek
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a dismissal without prejudice, the court further ORDERS Plaintiffs to explain in the same
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memorandum why they are so entitled. See Pace v. S. Express Co., 409 F.2d 331, 334
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(7th Cir.1969) (citing 5 Moore’s Federal Practice § 41.05(1) (2d ed. 1968)) (holding that
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the district court properly denied dismissal without prejudice where discovery was
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considerably advanced and defendant’s motion for summary judgment was pending).
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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
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dismiss and supplemental memorandum within seven days of the filing date of this order
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and indicate if they have any objection to the dismissal of this case. Defendants shall
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limit their response to no more than six pages. Plaintiffs may file a reply to Defendants’
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response no later than Thursday, March 30, 2017. Plaintiffs shall limit their reply to
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more than three pages.
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Dated this 21st day of March, 2017.
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A
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JAMES L. ROBART
United States District Judge
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ORDER - 3
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