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Brand v. Creative Health Care Services, Inc.

United States District Court, Ninth Circuit

June 17, 2013

Susan Brand and David Brand, Plaintiffs,
v.
Creative Health Care Services, Inc., d/b/a Sunrise Health & Hospice, an Arizona corporation, Defendant.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Plaintiffs' Motion for Voluntary Dismissal, (Doc. 46). Also pending are Defendant's Motion for Sanctions Against Plaintiffs, (Doc. 40), Motion for Leave of Court to File Defendant's Second Motion for Sanctions Against Plaintiffs, (Doc. 44), and Motion for Leave to File Surreply, (Doc. 51). For the reasons discussed below, the Court grants the Motion to Dismiss, grants in part and denies in part the Motion for Sanctions, and denies the Motions for Leave of Court.

BACKGROUND

On April 17, 2012, Plaintiffs Susan and David Brand filed a Complaint against Defendant Creative Health Care Services, Inc. ("Creative") alleging sex discrimination, sexual harassment, and retaliation in the workplace. (Doc. 1 ΒΆ 1.) Creative filed its Answer on July 23, 2012. (Doc. 12.) Ms. Brand worked as an employee of Creative, doing business as Sunrise Health and Hospice, from January 2009 until November 2009. (Doc. 1.) The Brands contend that on various occasions throughout Ms. Brand's employment, her manager, Dr. Khalid Shirif, subjected Ms. Brand to offensive verbal and physical conduct. (Doc. 1 at 2-3.) Unrelated to events between the Parties, in April 2010, Ms. Brand suffered a traumatic brain injury after hitting her head in a fall. (Doc. 49-1, Ex. A at 2).

On March 5, 2013, the Court conducted a telephone conference with the Parties to resolve a discovery dispute. (Doc. 40.) Creative contended that the Brands had not provided signed medical and counseling records releases required to calculate damages and conduct discovery in this matter. ( Id. at 2.) The Court ordered the Brands to provide the release forms to Creative within seven days. ( Id. ) Creative contends that the forms were not delivered within seven days by March 12, 2012, (id.), and Brand does not argue otherwise. Creative certifies that it attempted to resolve the discovery dispute by conferring with the Brands. ( Id. ) Not able to resolve the dispute, Creative filed a Motion for Sanctions on March 19, 2013, and requested reasonable expenses caused by the Brands' failure to produce records releases. ( Id. at 4-5.) Creative did not, however, provide evidence as to what expenses it incurred.

On April 1, 2013, the Court granted Creative's Motion for Rule 35 Examination and ordered Ms. Brand to submit to a medical examination. (Doc. 39.) Creative scheduled an appointment for the examination for April 10, 2013 (Doc. 44.) Although the Brands contend that they notified Creative that Ms. Brand would not be able to attend the exam as early as on April 5, 2013, (Doc. 47 at 1-2), it is uncontested that Creative was notified that Ms. Brand would not attend at least two days before the exam, (Doc. 48). On April 9, 2013, the Brands filed a Notice of Voluntary Dismissal. (Doc. 43.) On April 10, 2013, Creative filed a Motion for Leave of Court to File a Second Motion for Sanctions for the Brands' failure to comply with the Court's Order to attend the Rule 35 medical examination. (Docs. 39, 44.)

The Brands seek to voluntarily dismiss the action with prejudice. (Doc. 46.) They assert that Ms. Brand's medical condition, resulting from her fall, and the Brands' Christian faith prevent them from pursuing this litigation. (Docs. 46, 50.) Creative agrees to a dismissal with prejudice but also seeks an award of attorneys' fees under Title VII. (Doc. 49.)

DISCUSSION

I. LEGAL STANDARD

"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). When a plaintiff voluntarily dismisses its claim with prejudice, a conclusion that the defendant will suffer no legal prejudice from the dismissal is strengthened. Id. at 976.

II. ANALYSIS

A. Motion for Voluntary Dismissal with Prejudice

Here, a voluntary dismissal by the Brands requires a court order because Creative has served its Answer. (Doc. 49.) Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). Both Parties agree that the Brands' Complaint should be dismissed with prejudice. (Docs. 46, 49.) Thus, Creative will suffer no harm from dismissal here. See Smith, 263 F.3d at 976. Additionally, Creative requests "an express order stating that Plaintiffs' claims are dismissed with prejudice having been adjudicated upon the merits." (Doc. 49.) A dismissal "with prejudice", however, constitutes "an adjudication upon the merits." 531 U.S. 497, 505 (2001). The Ninth Circuit has held that a voluntary dismissal with prejudice is "sufficient to confer prevailing party status on the... defendants for those claims." Zenith Ins. Co. v. Breslaw, 108 F.3d 205, 207 (9th Cir. 1997) abrogated on other grounds by Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572 (9th Cir. 2000); see Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d ...


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