Paed et al v. Wells Fargo Bank, N.A. et al

Northern District of California, cand-4:2015-cv-01980

ORDER REGARDING REQUEST TO DISMISS. Signed by Judge Jeffrey S. White on 7/22/2015.

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 CECILLE Q. PAED, et al., 10 Plaintiffs, No. C 15-01980 JSW 11 v. United States District Court For the Northern District of California 12 WELLS FARGO BANK, N.A., ORDER REGARDING REQUEST TO DISMISS 13 Defendant. / 14 15 Now before the Court is the request by Plaintiff to voluntarily dismiss this case without 16 prejudice pursuant to Federal Rule of Civil Procedure 41. The Court has considered the parties' 17 papers relevant legal authority, and the record in this case. 18 Federal Rule of Civil Procedure 41 provides, in relevant part, that "an action may be 19 dismissed at the plaintiff's request only by court order, on terms that the court considers 20 proper." Fed. R. Civ. P. 41(a)(2). "The Ninth Circuit has long held that the decision to grant a 21 voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the District 22 Court." Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). In 23 exercising its discretion, the Court "must consider whether the defendant will suffer some plain 24 legal prejudice as a result of the dismissal." Id. 25 In light of the Court's Order on the motion to dismiss filed by Defendant Wells Fargo 26 Bank, N.A. ("Wells Fargo"), Wells Fargo urges that the dismissal be with prejudice on all of 27 Plaintiffs' claims except the one under California Civil Code section 2923.5. The Court notes 28 that the Order on the motion to dismiss left open the possibility of providing leave to amend 1 Plaintiffs' negligence claim. Moreover, depending upon whether Plaintiffs could allege claims 2 for violation of section 2923.5 or a negligence claim, they may be able to state a claim for 3 violation of California Business and Professions Code section 17200 as well. Therefore, the 4 Court finds that the dismissal of Plaintiffs' negligence claim and Section 17200 claim should be 5 without prejudice as well. Accordingly, Court HEREBY GRANTS Plaintiffs' request to 6 voluntarily dismiss this action. However, based on the Court's Order on the motion to dismiss, 7 the Court dismisses Plaintiffs' claim pursuant to California Civil Code section 2923.55 and their 8 claim for breach of the implied covenant of good faith and fair dealing with prejudice. The 9 remainder of Plaintiffs' claims are dismissed without prejudice. 10 IT IS SO ORDERED. 11 United States District Court For the Northern District of California 12 Dated: July 22, 2015 JEFFREY S. WHITE 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2