(PS) Freedom Mortgage Corp. v. Madariaga

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA | Freedom Mortgage Corporation, No. 2:19-ev-2432-KJM-DB 12 Plaintiff, ORDER 13 v. Christina Madariaga and Seila Madariaga, 1S Defendants.

17 Plaintiff Freedom Mortgage Corporation filed this action in 2019 against pro se | defendants Christina Madariaga (C.M.) and Seila Madariaga.! See Compl., ECF No. 1. Seila | Madariaga did not appear and in June 2020, following plaintiffs application, the Clerk’s Office | entered an entry of default. See Request, ECF No. 16; Default Entry, ECF No. 17. C.M.

21 | appeared to file a counterclaim against plaintiff, see ECF No. 7, but the court later struck this | filing under Federal Rule of Civil Procedure 12(f)(1), because the filing did not contain | allegations stating a legal cause of action, see Prior Order (Sept. 25, 2023), ECF No. 95.

24 | ///// ' Plaintiff states defaulted defendant Seila Madariaga’s first name has been misspelled as “Siela” in prior filings and the misspelling is reflected on the court’s docket. See Zachary Frampton Am. Decl. n.1, ECF No. 104. The defaulted defendant’s first name is correctly spelled “Seila.” /d. Plaintiff directed to use the correct spelling in future filings, and the court requests the Clerk of Court correct the spelling of the defendant’s name on the docket.

1 This action was then reassigned to the undersigned on December 28, 2023. See Clerk’s Notice, ECF No. 100. On the court’s own motion, a final pretrial conference was set for March 8, 2024, with a final pretrial statement due no less than three weeks prior. See Min. Order (Jan. 5, 2024), ECF No. 101. The parties have not filed a pretrial statement, but plaintiff now seeks to dismiss C.M. from this action without prejudice under Federal Rule of Civil Procedure 41(a)(2). See generally Mot., ECF No. 103. C.M. has not opposed and the opposition deadline has passed.

8 Federal Rule of Civil Procedure 41(a)(2) provides that if a defendant has appeared but not stipulated to dismissal, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citation omitted).

13 “‘Legal prejudice’ means ‘prejudice to some legal interest, some legal claim, some legal argument.’” Id. at 976 (citing Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)).

16 Here, plaintiff asserts it seeks an order dismissing C.M. without prejudice from this action so plaintiff can obtain a judgment against defaulted defendant Seila Madariaga and close this matter. See Mem. at 2, ECF No. 103-1. While C.M. has not opposed the motion, plaintiff states the parties were unable to jointly stipulate to a dismissal, because C.M. believes she has an active counterclaim pending in this matter. See Frampton Am. Decl. ¶ 2. However, as noted above, C.M.’s purported counterclaim was struck, see Prior Order (Sept. 25, 2023), and C.M. has no other active claims. The court finds C.M. will not suffer legal prejudice if the claims against her are dismissed.

24 Accordingly, the court grants plaintiff’s motion to dismiss defendant C.M. without prejudice. The final pretrial conference is hereby vacated, and plaintiff is directed to file a motion for default judgment against the remaining defendant in thirty (30) days.

27 This order resolves ECF No. 103.

28 ///// 1 IT IS SO ORDERED.

2 | DATED: February 28, 2024.

CHIEF ED STATES DISTRICT JUDGE