Summary
holding that causation is an indispensable element for negligence, strict liability, and breach of warranty claims under California law
Summary of this case from Brands v. Gen. Motors LLC (In re Gen. Motors LLC Ignition Switch Litig.)Opinion
1:06-cv-01527-SMS.
November 20, 2008
ORDER GRANTING MOTION TO DISMISS DEFENDANT DU PONT PURSUANT TO FED. R. CIV. P. 41(a)(2) (DOC. 107)
Plaintiffs are proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(b), and Local Rule 73-301. Pending before the Court is the motion of Plaintiff to dismiss Defendant E. I. Du Pont de Nemours and Company (Du Pont) pursuant to Fed.R.Civ.P. 41(a)(2), filed on October 17, 2008. By separate order, the hearing on the motion has been vacated, and the matter has been submitted to the Court for decision.
The instant suit is one for personal injury and property damage to both Plaintiffs, based on general negligence, product liability, and breach of warranty, suffered when a lawnmower which Defendants manufactured and sold was used by Plaintiff Vernon Holmes in August 2005 and caught fire. Plaintiffs filed a first amended complaint (FAC) on May 12, 2008, in which Defendant DuPont Industries was named for the first time as a defendant. (Doc. 78.) Plaintiffs filed a second amended complaint (SAC) on July 22, 2008, with a correction to the defendant's name, E. I. Du Pont de Nemours and Company; Plaintiff's counsel declares in a declaration submitted with the motion to dismiss that Du Pont was named because written discovery had revealed that Du Pont might have been a bulk material supplier to the manufacturer of a part at issue in the action. The docket reflects that Du Pont answered on August 20, 2008, denying the allegations in the complaint and stating affirmative defenses, but not filing any claims against any other party to the suit or any other entity.
Plaintiffs' counsel further declares that Plaintiffs have decided that they can prosecute their case and obtain full relief without Du Pont being named; Plaintiffs desire to dismiss Defendant Du Pont without prejudice. However, when Plaintiffs sought a stipulation from Defendants for the dismissal, Defendants Walbro Corporation and Briggs and Stratton Corporation refused to stipulate. Plaintiffs know of no proper basis for the refusal. The Court notes that the docket reflects that the Defendants did not file any opposition to the motion to dismiss.
Fed.R.Civ.P. 41(a)(2) provides in substance that unless sought before service of an answer or motion for summary judgment, or effected pursuant to a stipulation of dismissal signed by all parties who have appeared, dismissal of an action at the plaintiff's request may only be by court order.
Here, there are no counterclaims pending. No sound basis for refusing Plaintiff's request appears on the record.
Accordingly, it IS ORDERED that
1) Plaintiff's motion to dismiss Defendant E. I. du Pont de Nemours and Company IS GRANTED; and
2) Defendant E. I. du Pont de Nemours and Company IS DISMISSED from the action without prejudice.
IT IS SO ORDERED.