McGee v. Poverello House

9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA JILL MCGEE; et al., Case No. 1:18-cv-00768-LJO-SAB Plaintiffs, ORDER RE STIPULATION TO DISMISS 13 PLAINTIFFS’ SIXTH CAUSE OF ACTION v. FOR UNFAIR COMPETITION, 14 CALIFORNIA BUSINESS AND POVERELLO HOUSE; et al., PROFESSIONS CODE § 17200 ET SEQ.

16 Defendants. (ECF No. 43)

18 On October 2, 2019, stipulations were filed to dismiss certain Plaintiffs from this action and to dismiss Plaintiff’s sixth cause of action. An order was filed on October 3, 2019, dismiss Plaintiffs Noadiah Riaz, Christine Dambrosi and Lacey Hoxsie from this action without prejudice. By this order, the Court addresses the parties’ stipulation to dismiss the sixth cause of action.

The Ninth Circuit has held that Federal Rule of Civil Procedure 41(a)(1) cannot be used to dismiss individual claims against defendants, and that Rule 15 is the proper mechanism to do so. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (“In the specific context of Rule 41(a)(1), we have held that the Rule does not allow for piecemeal dismissals. Instead, withdrawals of individual claims against a given defendant are governed by [Rule 15].”); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988) (holding a plaintiff cannot use Rule 41 “to dismiss, unilaterally, a single claim from a multi-claim complaint.”); but see Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (“The Plaintiff may dismiss some or all of the defendants, or some or all of his claims, through a Rule 41(a)(1) notice.”). The Court finds it proper to construe the parties’ stipulation to dismiss the individual cause of action as consent to amend the complaint under Rule 15 of the Federal Rules of Civil Procedure. See Hells Canyon Pres. Council, 403 F.3d at 689 (“The fact that a voluntary dismissal of a claim under Rule 41(a) is properly labeled an amendment under Rule 15 is a technical, not a substantive distinction.”) (quoting Nilssen v. Motorola, Inc., 203 F.3d 782, 784 (Fed. Cir. 2000)). Therefore, the Court will give full effect to the parties’ stipulation through a Rule 15 amendment.

Accordingly, IT IS HEREBY ORDERED that pursuant to the parties’ stipulation to dismiss Plaintiffs’ sixth cause of action for unfair competition in violation of California Business and Professions Code section 17200 et seq. without prejudice against Defendants Poverello House and Naomi’s House, the Plaintiffs’ operative complaint (ECF No. 1 at 5-16) is DEEMED AMENDED and the sixth cause of action is no longer alleged against Defendants Poverello House and Naomi’s House.

18 IT IS SO ORDERED.

Dated: October 4, 2019 /s/ Lawrence J. O’Neill _____ 20 UNITED STATES CHIEF DISTRICT JUDGE