Hall v. Marriott International, Inc.

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA || TODD HALL, KEVIN BRANCA, and Case No.: 19cv1715-JO-AHG || GEORGE ABDELSAYED individually and on behalf of all others similarly ORDER GRANTING PLAINTIFF’S || situated, MOTION FOR VOLUNTARY 13 Plaintiffs,| DISMISSAL 14 v. || MARRIOTT INTERNATIONAL, INC., a || Delaware corporation, 7 Defendant.

18 Kevin Branca, one of three named Plaintiffs in this class action lawsuit, moved for || voluntary dismissal of his claims under Federal Rule of Civil Procedure 41(a)(2). Dkt.

20 ||124. Defendant Marriott International, Inc. (“Defendant”) does not oppose dismissal, but |{requests that the Court (1) preserve Defendant’s claims for fees and costs, and (2) award || Defendant costs in the amount of $2,844.35 under Federal Rule of Civil Procedure 54(d).

23 ||Dkt. 127 at 2. For the reasons stated below, the Court GRANTS Plaintiffs motion [Dkt.

24 || 124] and denies Defendant’s request for costs as procedurally improper.

25 I. DISCUSSION 26 A. Voluntary Dismissal 27 Plaintiff Branca seeks dismissal of his claims with prejudice. Dismissal by court || order under Rule 41(a)(2) is within “the sound discretion of the District Court.” Hamilton 1] 1 Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982). A voluntary || dismissal under Rule 41(a)(2) should be granted, “unless a defendant can show that it wil ||suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 □□□□ || Cir. 2001).

5 Here, Defendant does not oppose Plaintiff's request for voluntary dismissal □□□□ ||prejudice under Rule 41(a)(2), nor does Defendant contend that it will suffer lega prejudice. Dkt. 127. Defendant merely notes that it may request sanctions, fees, and cost: 8 the future. Accordingly, Plaintiff's motion for voluntary dismissal under Rule 41(a)(2 9 granted, without prejudice to Defendant’s right to make such requests in a time anc |;manner as required under applicable law and local rules.

1] B. Request for Prevailing Party Costs 12 Next, the Court declines to consider Defendant’s request for costs under Rule 54(d) ||Defendant’s request for affirmative relief is not properly presented because it is raised fo: 14 first time on Opposition, and Defendant has not complied with Southern District o: ||California Civil Local Rule 54.1. Duong v. Groundhog Enterprises, Inc., 2020 WI 16 2041939, at *12 (C.D. Cal. Feb. 28, 2020) (collecting cases); CivLR 54.1 (prevailing party ||must file bill of costs within fourteen days after entry of judgment, which “must □□□□□□□ 18 costs claimed and must be supported by a memorandum of costs, an affidavit o: ||counsel . . . and copies of the invoices”). Should Defendant wish to seek costs under Rule || 54(d), it should file a proper motion in accordance with the applicable rules.

21 C. Denial of Request to File Additional Briefing 22 In its exercise of discretion, the Court denies Defendant’s request to file a sur-repl} ||in opposition to Plaintiff Kevin Branca’s motion for voluntary dismissal. Permitting the || filing of a sur-reply is within the discretion of the district court. Nat’l Cas. Co. v. Nat’ || Strength & Conditioning Ass’n, 2020 WL 2991508, at *1 (S.D. Cal. June 4, 2020). “A || district court may allow a surreply to be filed, but only where a valid reason for suct || additional briefing exists, such as where the movant raises new arguments in its reply 28 brief.” Daniels v. ComUnity Lending, Inc., 2015 WL 2338713, at *4 (S.D. Cal. May 12 ||2015), aff'd, 621 F. App’x 427 (9th Cir. 2015) (citation omitted). Here, while Defendant |lidentifies a new argument in Plaintiff's reply disputing Defendant’s ability to seek || sanctions in the future, the Court has not considered these arguments in resolving Plaintiff's ||motion for voluntary dismissal. Thus, the Court finds the proposed sur-reply, Plaintiffs || opposition to the sur-reply, and Defendant’s reply to the sur-reply unnecessary.

6 Il. CONCLUSION 7 For the reasons stated above, the Court GRANTS Plaintiff's motion for voluntary || dismissal [Dkt. 124] and DENIES Defendant’s request to file a sur-reply [Dkt. 131].

10 IT IS SO ORDERED.

1] Dated: 3/22.

14 , sook Ohta 15 nited States District Court