Hernandez v. Arthur J. Gallagher Service Company, LLC

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 ITXAMAR HERNANDEZ, on behalf of Case No.: 22-cv-01910-H-DEB 12 herself and all other similarly situated, 13 ORDER DISMISSING DEFENDANT Plaintiff, PRONTO AUTO INSURANCE 14 v. SERVICES, INC. WITHOUT ARTHUR J. GALLAGHER SERVICE 16 COMPANY, LLC, a Delaware limited liability company; PRONTO AUTO 17 INSURANCE SERVICES, INC., a 18 California corporation; and DOES 1-50, 19 Defendants. 20 On October 28, 2022, Plaintiff Itxamar Hernandez filed a putative class action in the 21 Superior Court of California for the County of San Diego against Defendants Arthur J. 22 Gallagher Services Company, LLC (“Arthur J. Gallagher”) and Pronto Auto Insurance 23 Services, Inc. (“Pronto”). (Doc. No. 1-2, Compl.) On November 15, 2022, Plaintiff filed 24 a request for dismissal of Defendant Pronto without prejudice pursuant to California Rule 25 of Court 3.770.1 (Doc. No. 1-4 at ECF pp. 8-10.) On December 2, 2022, Defendant Arthur 26

27 1 In her request for dismissal of Defendant Pronto, Plaintiff explains that after the 28 1 J. Gallagher filed an answer to Plaintiff Hernandez’s complaint. (Doc. No. 1-3; Doc. No. 2 2.) On December 2, 2022, Defendant Arthur J. Gallagher also filed a notice of removal, 3 removing the action from state court to the United States District Court for the Southern 4 District of California pursuant to 28 U.S.C. §§ 1441, 1446, on the basis of jurisdiction 5 under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d) (“CAFA”). (Doc. No. 6 1, Notice of Removal.) 7 California Rule of Court 3.770 provides: “A dismissal of an entire class action, or of 8 any party or cause of action in a class action, requires court approval.” Based on the 9 Court’s review of the record, it appears that the state court never granted Plaintiff’s request 10 for dismissal of Defendant Pronto pursuant to California Rule of Court 3.770. (See 11 generally Doc. No. 1-3; see also Doc. No. 1, Notice of Removal at 1 n.1.) 12 Nevertheless, Federal Rule of Civil Procedure 41(1)(a)(i) permits a plaintiff to 13 dismiss a party without a court order by filing a notice of dismissal so long as that opposing 14 party has not served an answer or a motion for summary judgment.2 See Fed. R. Civ. P. 15 16 that she had never been employed by Defendant Pronto and that there is no joint employer relationship between Defendant Pronto and Defendant Arthur J. Gallagher. (Doc. No. 1-4 17 at ECF p. 9.) Plaintiff further explains that in light of this, she would not be able to serve 18 as a class representative against Defendant Pronto, and, therefore, she has decided to dismiss her class action as to Defendant Pronto without prejudice. (Id.) Plaintiff represents 19 that Defendant Pronto has not offered any consideration for her to dismiss her class action 20 claims, and Plaintiff has not received any consideration from anyone for the dismissal of her claims against Defendant Pronto. (Id.) Further, Plaintiff states that dismissal of her 21 class action claims without prejudice against Defendant Pronto will not and does not cause 22 any prejudice to any putative class members and does not constitute adjudication of the class action claims. (Id. at ECF p. 10.) 23 2 A dismissal under Rule 41(a) is subject to Federal Rule of Civil Procedure 23(e). 24 See Fed. R. Civ. P. 41(a). Rule 23(e) provides: “The claims, issues, or defenses of a 25 certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed. Civ. 26 P. 23(e). Because no class has been certified in this case or is proposed to certified as part 27 of the dismissal of Defendant Pronto, Rule 23(e) does not apply to Plaintiff’s request to dismiss Defendant Pronto. See Lee v. CVS Pharmacy, Inc., No. 320CV01923BENDEB, 28 1 ||41(1)(a)G@). Here, Defendant Pronto has not served an answer or a motion for summary 2 judgment in this action. As such, the Court dismisses Plaintiff's claims (both the individual 3 claims and the representative claims) against Defendant Pronto without prejudice pursuant 4 ||to Federal Rule of Civil Procedure 41(1)(a)(i).. The action will proceed on Plaintiffs 5 || putative class action claims against Defendant Arthur J. Gallagher. The Court orders 6 || Plaintiff to serve Defendant Pronto with a copy of this order. 8 || DATED: December 7, 2022 lu MARILYN f&. HUFF, DistrictJudge 10 UNITED STATES DISTRICT COURT 11 12 13 14 15 16 17 18 19 20 21

23 519CVO0855VAPSKX, 2021 WL 4497925, at *1 n.1 (C.D. Cal. June 23, 2021); see also A Fed. R. Civ. P. 23(e) advisory committee’s note to 2003 amendment (“The new rule requires approval only if the claims, issues, or defenses of a certified class are resolved by 25 settlement, voluntary dismissal, or compromise.”); but see Albers v. Yarbrough World %6 Sols., LLC, No. 5:19-CV-05896-EJD, 2021 WL 1925520, at *1 (N.D. Cal. May 13, 2021) (“The Ninth Circuit has held that Rule 23(e) also applies before certification, but in a much 27 || lighter form that does not entail ‘the kind of substantive oversight required when reviewing {18 settlement binding upon the class.’” (quoting Diaz v. Trust Territory of Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989)).