Anderson v. Creekwood Capital LLC

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
NATALIE ANDERSON, 	No. 09-12574
Debtor(s).
______________________________________/
NATALIE ANDERSON,
Plaintiff(s),
v. 	A.P. No. 10-1040
CREEKWOOD CAPITAL, LLC,
Defendant(s).
_______________________________________/
Memorandum on Motion to Dismiss
_________________
Plaintiff Natalie Anderson has filed a request for voluntary dismissal of the above adversary
proceeding. Because both an answer and a motion for summary judgment have been filed by
defendant, dismissal requires an order from the court which the court may condition on terms it
considers proper. Rule 41(a)(2), Fed.R.Civ.Proc., made applicable to bankruptcy adversary
proceedings by Fed.R.Bankr.Proc. 7041.
Defendant objects to dismissal because its summary judgment motion is pending, but has cited
Entered on Docket
June 11, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-01040 Doc# 28 Filed: 06/11/10 Entered: 06/11/10 14:14:35 Page 1 of 2

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no case applying Rule 41(a)(2) to the situation. Defendant seems to think that there is some sort of
automatic prejudice to it if it has to defend a second lawsuit, but that is not the case. Hamilton v.
Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir.1982). Defendant must show some
prejudice to a legal interest, claim or argument. Westlands Water Dist. v. United States, 100 F.3d 94,
97 (9th Cir.1996). Defendant has made no such showing.
Reliance on the court’s general equitable powers pursuant to § 105(a) of the Bankruptcy Code
is no substitute for thorough research and a cogent argument, based on applicable authority, as to why
plaintiff ought not to be allowed to dismiss or why the dismissal ought to be conditioned. In the
absence of a proper showing requiring the imposition of terms and conditions, plaintiff is entitled to a
dismissal without conditions. 27A Fed.Proc.L.Ed., Pleadings and Motions, § 62:523. Defendant
having failed to make such a showing, the request to dismiss will be granted without condition.
Counsel for plaintiff shall submit an appropriate form of order.
Dated: June 11, 2010
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 10-01040 Doc# 28 Filed: 06/11/10 Entered: 06/11/10 14:14:35 Page 2 of 2