New Cingular Wireless PCS, LLC dba AT&T Mobility v. City of Walla Walla

FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Mar 06, 2024 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON NEW CINGULAR WIRELESS PCS, No. 4:23-CV-05162-SAB LLC, D/B/A AT&T MOBILITY, a Delaware limited liability company, ORDER GRANTING IN PART 9 Plaintiff, AND DENYING IN PART STIPULATED MOTION FOR 10 v. PARITAL DISMISSAL AND DIRECTING FILING OF 11 AMENDED COMPLAINT BY CITY OF WALLA WALLA, MARCH 12, 2024 12 Defendant.

ECF No. 24 Before the Court is the parties’ Stipulated Motion for Partial Dismissal of the “Second Count” in the Complaint asserting a substantial evidence requirement claim under 47 U.S.C. § 332(c)(7)(B)(iii), ECF No. 24. The parties have filed the stipulation pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) seeking dismissal of just one of the claims with prejudice and without fees or costs. See ECF No. 24 at 2. However Rule 41 does not permit dismissal of fewer than all of the claims against a party. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“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.”); Gen. Signal Corp. v. MCI Telecomms. Corp., 66 3 F.3d 1500, 1513 (9th Cir. 1995) (“[W]e have held that Rule 15, not Rule 41, governs the situation when a party dismisses some, but not all, of its claims.”); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1392 (9th Cir. 1988). A district court may, however, construe such a stipulation as an unopposed request to amend the complaint and withdraw the claim in question under Rule 15(a). See Hells Canyon Pres. Council, 403 F.3d at 688–89. The court construes the stipulation in this way and grants the request to amend under Rule 15(a).

Accordingly, IT IS HEREBY ORDERED: 1. The parties’ Stipulated Motion for Partial Dismissal, ECF No. 24, is GRANTED IN PART and DENIED IN PART.

2. The Court construes the stipulation as an unopposed request to amend the Complaint. Plaintiff shall file an amended complaint omitting the Second Count by not later than March 12, 2024. The amended complaint shall conform precisely with the parties’ stipulation and shall not add other allegations, claims or parties without leave of Court.

3. Upon filing of the amended complaint, Defendant’s Motion for Partial Summary Judgment, ECF No. 23, which only pertains to the Second Count of the Complaint, will be denied as moot. All current deadlines and the hearing associated with the Motion for Partial Summary Judgment are STRICKEN.

IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order and provide copies to counsel.

3 DATED this 6th day of February 2024. | © Suleyl char Stanley A. Bastian 8 United States District Judge ORNER.2