United States District Court, W.D. Washington, Tacoma
TERESA TITUS, as an individual and as a representative of a class, Plaintiff,
ZESTFINANCE, INC., BLUECHIP FINANCIAL, and DOUGLAS MERRILL, Defendants.
ORDER ON MOTION TO VACATE DISMISSAL AND REOPEN
J. BRYAN United States District Judge.
MATTER comes before the Court on BlueChip Financial's
Motion to Vacate Dismissal and Reopen the Case. Dkt. 78. The
Court has considered the pleadings filed regarding the motion
and the remaining record.
putative class action arose from a series of loans Defendants
made to Plaintiff, which Plaintiff alleged carried triple
digit interest rates (sometimes exceeding 400%), that
violated Washington State usury law, RCW 19.52.030, the
Washington Consumer Protection Act, RCW 19.86.020, et
seq. (“WCPA”), and unjustly enriched
Defendants. Dkt. 1. Plaintiff also made a claim against
Defendants for violation of Racketeer Influenced Corrupt
Organizations Act, 18 U.S.C. § 1962, et seq.
(“RICO”), asserting that the Defendants
“associated for the common purpose of profiting off of
the collection [of] unlawful debt by offering and collecting
on loans to consumers throughout the United States . .
.” Dkt. 1, at 18.
October 18, 2018, the Defendants' motion to compel
arbitration was denied. Dkt. 48. The Defendants filed two
notices of appeal regarding the order denying the motion to
compel. Dkts. 55 and 56. Two cases were opened in the Ninth
Circuit Court of Appeals, Titus v. BlueChip
Financial, case number 18-35940, and Titus v.
ZestFinance, Inc. and Douglas Merrill, case number
18-35943; the Ninth Circuit cases were later consolidated.
The Defendants' motion to stay this case (before the
undersigned) pending the appeal was granted on November 19,
2018. Dkt. 68.
October 23, 2019, the Ninth Circuit Court of Appeals filed an
order indicating that Titus and ZestFinance, Inc. and Douglas
Merrill filed a stipulated motion to voluntarily dismiss the
appeal. Dkt. 75. The order granted the motion and dismissed
the appeal. Id. That order provided that it was to
“constitute the mandate of this court as to No.
18-35943 with Defendants-Appellants ZestFinance, Inc. and
Douglas Merrill.” Id.
October 24, 2019, Plaintiff filed a Notice of Voluntary
Dismissal Pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). Dkt. 76.
In this notice, the Plaintiff voluntarily dismissed all
claims she asserted against Defendants ZestFinance, Inc.,
BlueChip Financial, and Douglas Merrill with prejudice.
Id. The notice further provides that the
“dismissal shall be without an award of costs or fees
to any party. No. answer or motion for summary judgment has
yet been filed.” Id.
case before the Ninth Circuit Court of Appeals, Plaintiff
filed a motion to dismiss the remaining appeal as moot
(because she had voluntarily dismissed all claims with
prejudice in this the underlying case). Dkt. 86.
next day, on October 25, 2019, the undersigned entered an
order, noting that the Ninth Circuit issued its mandate. Dkt.
77. The case was dismissed with prejudice in accord with the
Plaintiff's notice of voluntary dismissal “without
an award of attorneys' fees or costs to any party.”
November 15, 2019, BlueChip Financial filed the instant
motion, asserting that the Plaintiff “orchestrated a
dismissal of this action through gamesmanship and
misrepresentation.” Dkt. 78. It argues that the
Plaintiff failed to notify the Court that there were two
separate but consolidated appeals, that only one of the
appeals had been settled and voluntarily dismissed, failed to
discuss whether it was proper to dismiss the putative class
claims, or inform the Court that BlueChip Financial did not
agree to waive costs. Id. BlueChip Financial moves
the Court for an order vacating the dismissal with prejudice
and allow BlueChip Financial to move for an award of costs.
Id. BlueChip Financial also filed a separate Motion
to Tax Costs. Dkt. 80.
Plaintiff responds and does not oppose vacating the portion
of the October 25, 2019 Order relating to the award of costs
for BlueChip Financial. Dkt. 82. The Plaintiff takes issue
with BlueChip Financial's characterization of her notice
and states that she in no way intended to mislead the Court.
Id. She acknowledges that the language related to
costs was an inadvertent failure to limit her request to
ZestFinance and Douglas Merrill. Id. She notes that
under Fed.R.Civ.P. 41(a)(1)(A)(i), because there was no
answer or motion for summary judgment filed, she was entitled
to voluntarily dismiss all her claims with prejudice.
Id. The Plaintiff further notes that under the newly
amended Fed.R.Civ.P. 23(e), if a class has not been
certified, court approval of a Rule 41(a)(1)(A)(i) dismissal
is no longer required. Id.
same day the Plaintiff filed her response in this case, on
December 2, 2019, the Ninth Circuit Court of Appeals issued
its decision; it granted the Plaintiff's motion to
dismiss the appeal as moot based on her Rule 41(a)(1)(A)(i)
dismissal. Dkt. 86. That memorandum opinion provided:
BlueChip's contentions that Titus acted improperly by
failing to inform the district court that similar class
actions were pending against BlueChip and failing to inform
the district court and this Court of the terms of Titus's
settlement agreement with other defendants do not change the
fact that this action is no longer proceeding. Nor has
BlueChip cited any authority for the proposition that it was
improper for Titus to dismiss her action without explanation
after the district court issued a stay order, and we have
found none. Finally, because BlueChip failed to assert its
counterclaims in an answer (which would have barred
Titus's voluntary dismissal under Rule 41(a)(1)(A)(i)),
BlueChip's assertions that it could have raised
counterclaims against Titus are unavailing. . .
It is irrelevant that Titus's counsel have filed putative
class actions against BlueChip in other cases with other
plaintiffs, because we may not look beyond the confines of
the case itself in assessing mootness. Therefore, even if
BlueChip is correct that Titus's attorneys engaged in
“strategic voluntary cessation, ” such conduct
does not affect our mootness analysis. BlueChip has not
identified any cognizable collateral consequences arising
within the “confines” of this case. Nor does the
case's status as a putative class action affect our
analysis. Because no class has been certified, Titus is the
only plaintiff before the court; once she has dismissed her
claims with prejudice, no other plaintiff can step into her
shoes to continue this legal action.
Id. (internal quotation marks and citations
omitted). The Ninth Circuit vacated this court's order
denying the motion to compel arbitration because
“Titus's unilateral action caused ...