1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TULARE GOLF COURSE, LLC, Case No. 1:21-cv-00505-JLT-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT REQUESTS FOR DISMISSAL 13 v. (Doc. 38) 14 VANTAGE TAG, INC., et al., 14-DAY DEADLINE 15 Defendants.
16 ARROW CAPITAL SOLUTIONS, INC., 17 Cross-Claimant, 18 v. 19 VANTAGE TAG, INC.,
20 Cross-Defendant. 21
22 23 I. BACKGROUND 24 On May 4, 2021, Plaintiff Tulare Golf Course, LLC (“Tulare Golf Course”), filed a first 25 amended complaint against Defendants Vantage Tag, Inc. (“Vantage Tag”), Arrow Capital 26 Solutions, Inc. (“Arrow Capital Solutions”), and U.S. Bank National Association (“U.S. Bank”). 27 (Doc. 11.) On June 4, 2021, Arrow Capital Solutions filed an answer to the complaint and a cross- claim against Vantage Tag. (Doc. 17.) On July 15, 2021, U.S Bank filed a motion to dismiss 1 pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), and Vantage Tag filed a motion to 2 compel arbitration, or alternatively, for a stay of proceedings.1 (Docs. 24, 25.) 3 On April 6, 2022, Tulare Golf Course and Arrow Capital Solutions filed a request for an 4 order of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) (the “Request”). (Doc. 38.) 5 Specifically, Plaintiff Tulare Golf Course requests dismissal without prejudice of Defendant Arrow 6 Capital Solutions from the action, and Arrow Capital Solutions requests dismissal without prejudice 7 of its cross-claim against Vantage Tag. (See id.) The Request indicates that, in September 2021, 8 Tulare Golf Course and Arrow Capital Solutions had prepared a stipulation for voluntarily 9 dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii), in which Tulare Golf Course 10 would dismiss with prejudice its action against Arrow Capital Solutions, and Arrow Capital 11 Solutions would dismiss with prejudice its cross-claim against Vantage Tag. (See id., Exhibit A.) 12 All parties except for U.S. Bank signed the stipulation. (See id.) As Tulare Golf Course and Arrow 13 Capital Solutions were unable to obtain U.S. Bank’s signature, they filed the instant Request. On 14 April 12, 2022, U.S. Bank filed an opposition to the Request (Doc. 40), and the matter was taken 15 under submission on that date (see Doc. 39). For the reasons set forth below, the undersigned will 16 recommend that the Request be granted. 17 II. DISCUSSION 18 A. Legal Standard 19 Rule 41(a)(2) provides in pertinent part that where a defendant has served an answer or 20 motion for summary judgment, or does not stipulate to a dismissal, “an action may be dismissed at 21 the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. 22 P. 41(a)(2). “Unless the order states otherwise, a dismissal under this paragraph (2) is without 23 prejudice.” Id. “The purpose of the rule is to permit a plaintiff to dismiss an action without 24 prejudice so long as the defendant will not be prejudiced, [citation], or unfairly affected by 25 dismissal. [Citations.]” Stevedoring Services of America v. Armilla International B. V., 889 F.2d 26 919, 921 (9th Cir. 1989). 27
1 1 The decision to grant or deny a motion pursuant to Rule 41(a)(2) is “within the sound 2 discretion of the trial court and may be reviewed only for abuse of that discretion.” Phillips v. 3 Illinois Central Gulf Railroad, 874 F.2d 984, 986 (9th Cir. 1989). A court should grant a Rule 4 41(a)(2) motion for voluntary dismissal unless the defendant will “suffer clear legal prejudice, other 5 than the prospect of a subsequent suit on the same facts.” Id. “Legal prejudice” means “prejudice 6 to some legal interest, some legal claim, some legal argument.” Westlands Water Dist. v. United 7 States, 100 F.3d 94, 96 (9th Cir. 1996). 8 B. Arrow Capital Solutions’ Request for Dismissal 9 Arrow Capital Solutions requests dismissal without prejudice of its cross-claim against 10 Vantage Tag. (See Doc. 38.) As no party opposes Arrow Capital Solutions’ request (see Doc. 38, 11 Exhibit A; Doc. 40 at 4), the undersigned finds that voluntary dismissal pursuant to Rule 41(a)(2) 12 of the Federal Rules of Civil Procedure will not result in “prejudice to some legal interest, some 13 legal claim, some legal argument.” See Westlands Water Dist., 100 F.3d at 96. Therefore, the 14 undersigned will recommend that Arrow Capital Solutions’ request for dismissal be granted. 15 C. Tulare Golf Course’s Request for Dismissal 16 Tulare Golf Course requests dismissal without prejudice of its complaint against Arrow 17 Capital Solutions, who does not oppose the request. (See Doc. 38.) The only objection to Tulare 18 Golf Course’s request comes from U.S. Bank. (See Doc. 38, Exhibit A; Doc. 40.) U.S. Bank, 19 however, does not assert that it will be prejudiced by Arrow Capital Solutions’ dismissal from the 20 action.2 Rather, U.S. Bank’s opposition appears to be procedural. Specifically, U.S. Bank “objects 21 to the form of dismissal” filed by Tulare Golf Course, asserting that Federal Rule of Civil Procedure 22 41 (“Rule 41”) does not allow piecemeal dismissal of claims. (See Doc. 40 at 2.) According to 23 U.S. Bank, the proper procedure for dismissal of Arrow Capital Solutions would be for Tulare Golf 24 Course to file an amended complaint pursuant to Federal Rule of Civil Procedure 15, removing 25 Arrow Capital Solutions as a defendant. (Id. (citing, e.g., Hells Canyon Pres. Council v. U.S. Forest 26
27 2 In its opposition, U.S. Bank indicated that, given its pending motion to dismiss for lack of subject matter jurisdiction, it “hesitated” to sign the September 2021 stipulation (see Doc. 38, Exhibit A) “in case U.S. Bank would be considered 1 Serv., 403 F.3d 683, 688 (9th Cir. 2005); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 2 (9th Cir. 1988); Nelson v. Foster Poultry Farms, No. 1:21–CV–00222–JLT–BAM, 2022 WL 3 970776, at *4 (E.D. Cal. Mar. 31, 2022)). 4 The cases relied upon by U.S. Bank in support of its contention are distinguishable from the 5 instant case. Those cases addressed the propriety of dismissal of some, but not all, claims against 6 a defendant. See Hells Canyon, 403 F.3d at 687 (“[W]ithdrawals of individual claims against a 7 given defendant are governed by Fed. R. Civ. P. 15, which addresses amendments to pleadings.”); 8 Ethridge, 861 F.2d at 1392 (noting that “a plaintiff may not use Rule 41(a)(1)(i) to dismiss, 9 unilaterally, a single claim from a multi-claim complaint,” and “Federal Rule of Civil Procedure 10 15(a) is the appropriate mechanism ‘[w]here a plaintiff desires to eliminate an issue, or one or more 11 but less than all of several claims, but without dismissing as to any of the defendants.’ [Citation.]”) 12 (emphasis added); Nelson, 2022 WL 970776, at *4 (“Rule 41(a) is not the proper mechanism for a 13 plaintiff to dismiss some but not all claims against a particular defendant.”). Here, however, Tulare 14 Golf Course is seeking wholesale dismissal of a defendant, Arrow Capital Solutions, from the 15 action.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TULARE GOLF COURSE, LLC, Case No. 1:21-cv-00505-JLT-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT REQUESTS FOR DISMISSAL 13 v. (Doc. 38) 14 VANTAGE TAG, INC., et al., 14-DAY DEADLINE 15 Defendants.
16 ARROW CAPITAL SOLUTIONS, INC., 17 Cross-Claimant, 18 v. 19 VANTAGE TAG, INC.,
20 Cross-Defendant. 21
22 23 I. BACKGROUND 24 On May 4, 2021, Plaintiff Tulare Golf Course, LLC (“Tulare Golf Course”), filed a first 25 amended complaint against Defendants Vantage Tag, Inc. (“Vantage Tag”), Arrow Capital 26 Solutions, Inc. (“Arrow Capital Solutions”), and U.S. Bank National Association (“U.S. Bank”). 27 (Doc. 11.) On June 4, 2021, Arrow Capital Solutions filed an answer to the complaint and a cross- claim against Vantage Tag. (Doc. 17.) On July 15, 2021, U.S Bank filed a motion to dismiss 1 pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), and Vantage Tag filed a motion to 2 compel arbitration, or alternatively, for a stay of proceedings.1 (Docs. 24, 25.) 3 On April 6, 2022, Tulare Golf Course and Arrow Capital Solutions filed a request for an 4 order of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) (the “Request”). (Doc. 38.) 5 Specifically, Plaintiff Tulare Golf Course requests dismissal without prejudice of Defendant Arrow 6 Capital Solutions from the action, and Arrow Capital Solutions requests dismissal without prejudice 7 of its cross-claim against Vantage Tag. (See id.) The Request indicates that, in September 2021, 8 Tulare Golf Course and Arrow Capital Solutions had prepared a stipulation for voluntarily 9 dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii), in which Tulare Golf Course 10 would dismiss with prejudice its action against Arrow Capital Solutions, and Arrow Capital 11 Solutions would dismiss with prejudice its cross-claim against Vantage Tag. (See id., Exhibit A.) 12 All parties except for U.S. Bank signed the stipulation. (See id.) As Tulare Golf Course and Arrow 13 Capital Solutions were unable to obtain U.S. Bank’s signature, they filed the instant Request. On 14 April 12, 2022, U.S. Bank filed an opposition to the Request (Doc. 40), and the matter was taken 15 under submission on that date (see Doc. 39). For the reasons set forth below, the undersigned will 16 recommend that the Request be granted. 17 II. DISCUSSION 18 A. Legal Standard 19 Rule 41(a)(2) provides in pertinent part that where a defendant has served an answer or 20 motion for summary judgment, or does not stipulate to a dismissal, “an action may be dismissed at 21 the plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R. Civ. 22 P. 41(a)(2). “Unless the order states otherwise, a dismissal under this paragraph (2) is without 23 prejudice.” Id. “The purpose of the rule is to permit a plaintiff to dismiss an action without 24 prejudice so long as the defendant will not be prejudiced, [citation], or unfairly affected by 25 dismissal. [Citations.]” Stevedoring Services of America v. Armilla International B. V., 889 F.2d 26 919, 921 (9th Cir. 1989). 27
1 1 The decision to grant or deny a motion pursuant to Rule 41(a)(2) is “within the sound 2 discretion of the trial court and may be reviewed only for abuse of that discretion.” Phillips v. 3 Illinois Central Gulf Railroad, 874 F.2d 984, 986 (9th Cir. 1989). A court should grant a Rule 4 41(a)(2) motion for voluntary dismissal unless the defendant will “suffer clear legal prejudice, other 5 than the prospect of a subsequent suit on the same facts.” Id. “Legal prejudice” means “prejudice 6 to some legal interest, some legal claim, some legal argument.” Westlands Water Dist. v. United 7 States, 100 F.3d 94, 96 (9th Cir. 1996). 8 B. Arrow Capital Solutions’ Request for Dismissal 9 Arrow Capital Solutions requests dismissal without prejudice of its cross-claim against 10 Vantage Tag. (See Doc. 38.) As no party opposes Arrow Capital Solutions’ request (see Doc. 38, 11 Exhibit A; Doc. 40 at 4), the undersigned finds that voluntary dismissal pursuant to Rule 41(a)(2) 12 of the Federal Rules of Civil Procedure will not result in “prejudice to some legal interest, some 13 legal claim, some legal argument.” See Westlands Water Dist., 100 F.3d at 96. Therefore, the 14 undersigned will recommend that Arrow Capital Solutions’ request for dismissal be granted. 15 C. Tulare Golf Course’s Request for Dismissal 16 Tulare Golf Course requests dismissal without prejudice of its complaint against Arrow 17 Capital Solutions, who does not oppose the request. (See Doc. 38.) The only objection to Tulare 18 Golf Course’s request comes from U.S. Bank. (See Doc. 38, Exhibit A; Doc. 40.) U.S. Bank, 19 however, does not assert that it will be prejudiced by Arrow Capital Solutions’ dismissal from the 20 action.2 Rather, U.S. Bank’s opposition appears to be procedural. Specifically, U.S. Bank “objects 21 to the form of dismissal” filed by Tulare Golf Course, asserting that Federal Rule of Civil Procedure 22 41 (“Rule 41”) does not allow piecemeal dismissal of claims. (See Doc. 40 at 2.) According to 23 U.S. Bank, the proper procedure for dismissal of Arrow Capital Solutions would be for Tulare Golf 24 Course to file an amended complaint pursuant to Federal Rule of Civil Procedure 15, removing 25 Arrow Capital Solutions as a defendant. (Id. (citing, e.g., Hells Canyon Pres. Council v. U.S. Forest 26
27 2 In its opposition, U.S. Bank indicated that, given its pending motion to dismiss for lack of subject matter jurisdiction, it “hesitated” to sign the September 2021 stipulation (see Doc. 38, Exhibit A) “in case U.S. Bank would be considered 1 Serv., 403 F.3d 683, 688 (9th Cir. 2005); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 2 (9th Cir. 1988); Nelson v. Foster Poultry Farms, No. 1:21–CV–00222–JLT–BAM, 2022 WL 3 970776, at *4 (E.D. Cal. Mar. 31, 2022)). 4 The cases relied upon by U.S. Bank in support of its contention are distinguishable from the 5 instant case. Those cases addressed the propriety of dismissal of some, but not all, claims against 6 a defendant. See Hells Canyon, 403 F.3d at 687 (“[W]ithdrawals of individual claims against a 7 given defendant are governed by Fed. R. Civ. P. 15, which addresses amendments to pleadings.”); 8 Ethridge, 861 F.2d at 1392 (noting that “a plaintiff may not use Rule 41(a)(1)(i) to dismiss, 9 unilaterally, a single claim from a multi-claim complaint,” and “Federal Rule of Civil Procedure 10 15(a) is the appropriate mechanism ‘[w]here a plaintiff desires to eliminate an issue, or one or more 11 but less than all of several claims, but without dismissing as to any of the defendants.’ [Citation.]”) 12 (emphasis added); Nelson, 2022 WL 970776, at *4 (“Rule 41(a) is not the proper mechanism for a 13 plaintiff to dismiss some but not all claims against a particular defendant.”). Here, however, Tulare 14 Golf Course is seeking wholesale dismissal of a defendant, Arrow Capital Solutions, from the 15 action. “Federal Rule of Civil Procedure 41 allows plaintiffs voluntarily to dismiss some or all of 16 their claims against some or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy Ctr., 17 LLC, 548 F.3d 738, 748 (9th Cir. 2008); see, e.g., Jones v. TW & Co., No. 1:11–CV–01242–AWI– 18 JLT, 2015 WL 350796, at *1 (E.D. Cal. Jan. 26, 2015) (granting the plaintiff’s Rule 41(a)(2) request 19 for dismissal of only one of several defendants); Shepard v. Tilton, No. 1:10–CV–00023–DLB PC, 20 2011 WL 5511851, at *1 (E.D. Cal. Nov. 10, 2011) (same). 21 Accordingly, the undersigned finds that Tulare Golf Course’s request to dismiss Arrow 22 Capital Solutions from the action is properly made pursuant to Rule 41(a)(2). As U.S. Bank has 23 not made a showing of legal prejudice by the dismissal of Arrow Capital Solutions, and no other 24 defendant has made a claim of prejudice, the undersigned will recommend that Tulare Golf 25 Course’s request for dismissal be granted. See, e.g., Fardig v. Hobby Lobby Stores, Inc., No. 26 SACV1400561JVSANX, 2014 WL 12694581, at *2 (C.D. Cal. Nov. 10, 2014) (“Voluntary 27 dismissal under 41(a)(2) is granted liberally, provided a party will not suffer legal prejudice.”) 1 III. CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff Tulare Golf 3 Course’s request for dismissal without prejudice of its complaint against Defendant Arrow Capital 4 Solutions, and Cross-Claimant Arrow Capital Solutions’ request for dismissal without prejudice of 5 its cross-claim against Cross-Defendant Vantage Tag (Doc. 38), be GRANTED. 6 These findings and recommendation are submitted to the district judge assigned to this 7 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 8 (14) days of service of this recommendation, any party may file written objections to these findings 9 and recommendation with the Court and serve a copy on all parties. The document should be 10 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 11 will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 12 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 13 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 14 IT IS SO ORDERED. 15
16 Dated: April 21, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17
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