Neville v. Dill

• Court: District Court, S.D. California
• Decided: September 6, 2019
• Docket: 3:19-cv-00321
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT NEVILLE, MD, Case No.: 19cv321-CAB-MDD

12 Plaintiff, ORDER REGARDING EX PARTE 13 v. MOTION TO DISMISS [Doc. No. 20] 14 MARGUERITE DILL, 15 Defendant. 16

17 On August 13, 2019, Plaintiff Robert Neville (“Plaintiff”) filed a “Voluntary 18 Dismissal” [Doc. No. 25], which this Court deemed an ex parte motion to dismiss 19 pursuant to Fed.R.Civ.P. Rule 41(a)(2) [Doc. No. 26]. On August 20, 2019, Defendant 20 Marguerite Dill (“Defendant”) filed a conditional non-opposition to the motion. [Doc. 21 No. 29.] No reply has been filed. The motion is granted with modification as set forth 22 below. 23 Background 24 On January 3, 2019, the United States District Court for the Southern District of 25 Georgia permanently enjoined Plaintiff “from, either directly or indirectly, litigating the 26 administration of Jessica Neville’s estate or the Bulloch Property transaction any further 27 in this Court.” Neville v. McCaghren (“McCaphren Action”), Case No. 6:17cv75-JRH- 28 1 JEG, 2019 WL 97836, at *6 (Jan. 3, 2019). Just over a month later, on February 14, 2 2019 Plaintiff, proceeding pro se and in forma pauperis, filed an action in this Court 3 related to the administration of Jessica Neville’s estate and the Bulloch Property 4 transactions, this time naming Marguerite Dill as defendant. [Doc. Nos. 1, 6, 7.] 5 Defendant filed her answer on May 7, 2019. [Doc. No. 10.] 6 On May 16, 2019, Magistrate Judge Mitchell D. Dembin issued a Notice and Order 7 for Early Neutral Evaluation and Case Management Conference to be held June 20, 2019. 8 [Doc. No. 11.] On June 20, 2019, Defendant and her attorneys appeared for the 9 ENE/CMC, but Plaintiff failed to appear. The Court issued an OSC the same day [Doc. 10 No. 14], ordering Plaintiff to personally appear at a hearing on July 26, 2019 to show 11 cause why he should not be sanctioned for failing to appear at the ENE/CMC. 12 On July 22, 2019, Plaintiff filed a response to the OSC requesting leave to appear 13 at the July 26 OSC hearing by telephone, which request was granted by Judge Dembin on 14 July 24, 2019. [Doc. Nos. 16, 17.] 15 On July 26, 2019, Defendant personally appeared with her attorneys for the OSC 16 hearing, while Plaintiff made an appearance by phone. Judge Dembin advised Plaintiff 17 that he would be issuing sanctions for Plaintiff’s failure to appear at both hearings set to 18 date, and invited Defendant to submit an ex parte request for attorneys’ fees and costs 19 incurred in connection with both the ENE/CMC and the OSC hearing. Judge Dembin also 20 set another ENE/CMC for August 20, 2019, at which the parties were ordered to 21 personally appear in accordance with the Court’s rules. [Doc. No. 23.] 22 On August 2, 2019, pursuant to Judge Dembin’s instruction, Defendant filed and 23 served an ex parte request for costs in the amount of One Thousand & 00/100 Dollars 24 ($1000.00), representing Defendant’s costs incurred in connection with the ENE/CMC 25 and the OSC hearing. [Doc. No. 18.] 26

27 1 The McCaghren Action named as defendant Elizabeth McCaghren, Defendant Dill’s sister and 28 Plaintiff Neville’s half-sister. McCaghren, Neville and Dill are all children of Jessica Neville, who was 1 On August 2, 2019, Plaintiff filed a letter with this Court, which was docketed as 2 an objection [Doc. No. 20], requesting removal of Judge Dembin from presiding as 3 magistrate in this matter and requesting assignment of a new magistrate judge. On August 4 5, 2019, this Court denied the objection. [Doc. No. 21.] 5 On August 13, 2019, Plaintiff filed a notice of voluntary dismissal, which this 6 Court docketed as the presently pending ex parte motion to dismiss the action. [Doc. No. 7 25.] This Court set a briefing schedule on the same date. [Doc. No. 26.] 8 On August 15, 2019, Judge Dembin issued an order sanctioning Plaintiff and 9 awarding Defendant her costs as submitted. [Doc. No. 28.] Judge Dembin also vacated 10 the ENE/CMC hearing scheduled for August 20, 2019. [Doc. No. 27.] 11 Discussion 12 Under Rule 41(a)(2), “an action may be dismissed at the plaintiff’s request only by 13 court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Dismissal 14 is without prejudice unless the order states otherwise. Id. “The purpose of the rule is to 15 permit a plaintiff to dismiss an action without prejudice so long as the defendant will not 16 be prejudiced, or unfairly affected by dismissal.” Stevedoring Servs. of Am. v. Armilla 17 Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989) (internal citation omitted) (citing Davis v. 18 USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987); McCants v. Ford Motor Co., Inc., 781 19 F.2d 855, 856 (11th Cir. 1986); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 20 1976) ). Whether to grant a voluntary dismissal under Rule 41(a)(2) lies in the sound 21 discretion of the district court. See Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). 22 Here it appears that Plaintiff has engaged in forum-shopping in an attempt to 23 circumvent the rulings and sanctions issued in the McCaghren Action. Then, after failing 24 to appear at two hearings in this action, and being sanctioned by Judge Dembin, Plaintiff 25 has asked to dismiss this case. In order to prevent further prejudice to Defendant, the 26 terms for dismissal that this court “considers proper” are that the dismissal be with 27 prejudice and that Defendant be awarded costs as previously ordered by Judge Dembin. 28 1 Conclusion 2 For the reasons set forth above, the ex parte motion to dismiss pursuant to 3 || Fed.R.Civ.P. Rule 41(a)(2) is GRANTED as follows: This action is HEREBY 4 DISMISSED WITH PREJUDICE and Plaintiff is required to pay the sanctions in the 5 |}amount of $1,000 awarded to Defendant. The Clerk shall enter judgment for Defendant 6 |}and CLOSE the case. 7 IT IS SO ORDERED. 8 Dated: September 6, 2019 ( é & ° Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28