Danielle Nisim v. Profire

• Court: District Court, C.D. California
• Decided: March 30, 2022
• Docket: 5:22-cv-00405
• Status: Unknown

Opinion

Case 5:22-cv-00405-JWH-SHK Document 21 Filed 03/30/22 Page 1 of 3 Page ID #:268 J S -6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES— GENERAL

Case No. 5:22-cv-00405-JWH-SHKx Date March 30, 2022 Title Danielle Nisim v. Profire, et al.

Present: The Honorable JOHN W. HOLCOMB, UNITED STATES DISTRICT JUDGE

Irene Vazquez Not Reported Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s): None Present None Present

Proceedings: ORDER REGARDING PLAINTIFF’S MOTION TO REMAND OR, IN THE ALTERNATIVE, DISMISS PLAINTIFF’S COMPLAINT [ECF No. 11] (IN CHAMBERS) Before the Court is the motion of Plaintiff Danielle Nisim to remand or, in the alternative, to dismiss voluntarily her complaint without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure.1 Defendants Fisher Controls International, LLC and Merson Process Management Regulator Technologies, Inc. oppose,2 and Defendants Ferrellgas, Inc.3 and Brasscraft Manufacturing Company4 join in that Opposition (collectively, “Defendants”). For the reasons described below, the Court DENIES Nisim’s Motion to remand, but it GRANTS Nisim’s Motion to dismiss.

1 Pl.’s Mot. to Remand or, in the Alternative, Dismiss Pl.’s Compl. (Without Prejudice) (the “Motion”) [ECF No. 11]. 2 Defs.’ Opp’n to the Motion (the “Opposition”) [ECF No. 13]. 3 Def. Ferrellgas, Inc.’s Joinder to the Motion [ECF No. 14]. 4 Def. Brasscraft Manufacturing Company’s Joinder to the Motion [ECF No. 15]. CIVIL MINUTES— Page 1 of 3 Initials of Deputy Clerk iv GENERAL Case 5:22-cv-00405-JWH-SHK Document 21 Filed 03/30/22 Page 2 of 3 Page ID #:269

A. Motion to Remand The Court finds that subject-matter jurisdiction existed at the time of removal, as Nisim had not yet added in-state defendants that would have destroyed diversity in this particular case5 (as opposed to what Nisim describes as her “lead case”).6 Accordingly, Nisim’s request for this Court to remand this action to state court is DENIED. B. Motion to Dismiss Under the Federal Rules of Civil Procedure, “an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41. The decision to grant a voluntary dismissal under Rule 41(a)(2) lies with the sound discretion of the Court. See Kern Oil Refining Co. v. Tenneco Oil Co., 792 F.2d 1380, 1389 (9th Cir. 1986). Generally speaking, a motion for voluntary dismissal should be granted unless the defendant shows that it will suffer some plain legal prejudice as a result. See Waller v. Financial Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987). “Plain legal prejudice may be shown where actual legal rights are threatened or where monetary or other burdens appear to be extreme or unreasonable.” United States v. Berg, 190 F.R.D. 539, 543 (E.D. Cal. 1999). “Plain legal prejudice, however, does not result simply when defendant faces the prospect of a second lawsuit or when plaintiff merely gains some tactical advantage.” Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). In this action, Defendants have not shown plain legal prejudice. Defendants’ alleged deprivation of the “streamlined rules and protections” of federal court does not constitute an extreme or unreasonable burden.7 See Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001) (holding that “plain legal prejudice does not result 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). Furthermore, Nisim was not dilatory in attempting to secure a stipulation or filing this Motion. That factor also weighs in favor of granting her

5 Opposition 4:1-5:4. 6 Motion 5:10. 7 Opposition 6:10-11. CIVIL MINUTES— Page 2 of 3 Initials of Deputy Clerk iv GENERAL Case 5:22-cv-00405-JWH-SHK Document 21 Filed 03/30/22 Page 3 of 3 Page ID #:270

request to dismiss this case.8 See Self v. Equinox Holdings, Inc., 2015 WL 13298146, at *12 (C.D. Cal. Jan. 5, 2015) (considering the plaintiff’s diligence in filing the motion to dismiss as a factor in the court’s analysis). C. Conclusion For those reasons, the Court hereby ORDERS as follows: 1. Nisim’s Motion to remand is DENIED. 2. Nisim’s Motion to dismiss is GRANTED. Nisim’s Complaint is DISMISSED without prejudice. 3. The hearing on the Motion set for April 8, 2022, is VACATED. IT IS SO ORDERED.

8 Motion 5:22-26; Pl.’s Reply to the Opposition [ECF No. 17] 4:23-5:18. CIVIL MINUTES— Page 3 of 3 Initials of Deputy Clerk iv GENERAL