Arnold v. Beemer Haus LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Gregory Arnold, No. CV-21-01450-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 Beemer Haus LLC, 13 Defendant. [14] 15 Pending before the Court is Plaintiff’s Motion to Voluntarily Dismiss this Action 16 with Prejudice. (Doc. 17.) Defendants responded and—in the same document—moved 17 for Rule 11 sanctions. (Doc. 20.) Plaintiff responded to Defendant’s Rule 11 Motion. 18 (Doc. 18.) Having considered the parties’ briefing and relevant case law, the Court will 19 grant Plaintiff’s Motion and deny Defendant’s for reasons explained below. 20 I. DISCUSSION 21 A. Dismissal 22 Plaintiff moved for voluntary dismissal with prejudice pursuant to Federal Rule of 23 Civil Procedure 41(a)(2). (Doc. 17 at 1.) Rule 41 provides that “an action may be 24 dismissed at the plaintiff’s request only by court order, on terms that the court considers 25 proper.” Fed. R. Civ. P. 41(a)(2). Essentially, Rule 41 requires a two-step analysis: (1) 26 whether to dismiss; and (2) if so, whether to do so with or without prejudice and on what 27 terms. Id.; see also United States v. Berg, 190 F.R.D. 539, 543 (E.D. Cal. 1999) 28 (determining that under Rule 41, a “suit may be dismissed with or without prejudice, and 1 the dismissal may be conditioned on terms that are proper and necessary to avoid prejudice 2 to the defendant”). 3 A motion for voluntary dismissal should ordinarily be granted unless “defendant 4 can show that it will suffer some plain legal prejudice as a result of the dismissal.” Clerisy 5 Corp. v. Airware Holdings, Inc., No. CV 12-2110-PHX-PGR, 2013 WL 6252428 , * 2 (D. 6 Ariz. Dec. 4, 2013) (citing Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001)). Here, 7 there is no concern of Defendant being prejudiced as Defendant agrees with Plaintiff’s 8 Motion. (See Doc. 20 at 1.) Consequently, the Court will dismiss the case with prejudice. 9 B. Sanctions 10 Defendant requests that Plaintiff pay its attorney fees pursuant to Federal Rule of 11 Civil Procedure 11. (Id.) Plaintiff responds that Defendant’s Rule 11 Motion is 12 procedurally deficient and substantively unsupported. (Doc. 18 at 1.) Because the Court 13 is persuaded by the former argument, it will not address the latter. 14 Rule 11 contains a safe harbor provision that requires the party seeking sanctions to 15 serve the allegedly offending party with a copy of the motion for sanction 21 days before 16 filing said motion with the court. Fed. R. Civ. P. 11(C)(2). If the offending party corrects 17 the issue within that 21-day period, then “the motion must not be filed or be presented to 18 the court.” Id.; see also Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998) (“The purpose 19 of the safe harbor, however, is to give the offending party [a 21-day] opportunity . . . to 20 withdraw the offending pleading and thereby escape sanctions.”). 21 Here, Defendant failed to serve a motion for Rule 11 sanctions 21 days prior to filing 22 its motion with the Court. Thus, their request must be denied. See Fed. R. Civ. P. 11(C)(2). 23 II. CONCLUSION 24 Therefore, 25 IT IS ORDERED granting Plaintiff’s Motion to Voluntarily Dismiss with 26 Prejudice, (Doc. 17), and denying Defendant’s Rule 11 Motion, (Doc. 20). 27 /// 28 /// 1 IT IS FURTHER ORDERED instructing to the Clerk to enter judgment in 2|| accordance with this ruling and close this case. 3 Dated this 11th day of January, 2022. [4] 5 Le —~ os > fonorable Susan M. Brnovich = 7 United States District Judge [28] _3-