Smith v. Bank of New York Mellon

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 KAREN D. SMITH, CASE NO. C19-0538-JCC 10 Plaintiff, MINUTE ORDER 11 v. 12 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE 13 FOR THE BENEFIT OF THE CERTIFICATE HOLDERS OF THE CWABS INC., ASSET- 14 BACKED CERTIFICATES, SERIES 2007-SD1, 15 et al., 16 Defendants. 17

18 The following Minute Order is made by direction of the Court, the Honorable John C. 19 Coughenour, United States District Judge: 20 This matter comes before the Court on the stipulation of dismissal (Dkt. No. 132) filed by 21 Plaintiff Karen D. Smith and Defendants Newrez LLC d/b/a Shellpoint Mortgage Servicing 22 (“Shellpoint”) and The Bank Of New York Mellon fka The Bank of Year York, as Trustee for 23 The Benefit of the Certificateholders of The CWABS Inc., Asset-Backed Certificates Series 24 2007-SDI (“BNYM”) (Dkt. No. 40). Ms. Smith, Shellpoint, and BNYM stipulate to the dismissal 25 of all claims against Defendants Shellpoint and BNYN with prejudice, with each party to bear its 26 own costs and fees. 1 Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that “the plaintiff may dismiss 2 an action without a court order by filing . . . a stipulation of dismissal signed by all parties who 3 have appeared.” The Rule’s plain text allows only for the voluntary dismissal of an entire action 4 against all defendants, but the Ninth Circuit has construed Rule 41(a)(1) to allow a party to 5 dismiss all claims against one defendant (or against more than one defendant but fewer than all 6 the defendants in an action) when all parties that have appeared have stipulated to such a 7 dismissal. See Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th 8 Cir. 2005). Here, the stipulation (Dkt. No. 132) has not been signed by the attorneys for the other 9 remaining defendant. Accordingly, the stipulation does not comply with Rule 41(a)(1)(A)(ii). 10 The parties are DIRECTED to file an amended stipulation or other appropriate request for an 11 order of dismissal. 12 DATED this 30th day of August 2021. Ravi Subramanian 13 Clerk of Court 14 s/Sandra Rawski 15 Deputy Clerk 16

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