Esquivel v. Arau

• Citation: 913 F. Supp. 1382
• Decision Date: 26 January 1996
• Docket Number: No. CV 95-6551 WJR (Mcx).,CV 95-6551 WJR (Mcx).
• Court: U.S. District Court — Central District of California
• Parties: Laura ESQUIVEL, Plaintiff, v. Alfonso ARAU, Arau Films International S.A. de C.V., Cinema Chocolate S.A. de C.V., Atracciones Polifemo S.A. de C.V., and Seventh Dimension Entertainment Company, Inc., Defendants.

913 F. Supp. 1382

Laura ESQUIVEL, Plaintiff, v. Alfonso ARAU, Arau Films International S.A. de C.V., Cinema Chocolate S.A. de C.V., Atracciones Polifemo S.A. de C.V., and Seventh Dimension Entertainment Company, Inc., Defendants.

No. CV 95-6551 WJR (Mcx).

United States District Court, C.D. California.

January 26, 1996.

COPYRIGHT MATERIAL OMITTED

Martin Garbus (pro hac vice), Maura Wogan (pro hac vice), Frankfurt, Garbus, Klein & Selz, P.C., New York City, Carol E. Handler, Dana Milmeister, Alschuler, Grossman & Pines, Los Angeles, CA, for plaintiff Laura Esquivel.

Lawrence M. Harnett (pro hac vice) and Eric L. Gilioli (pro hac vice), Marks & Murase L.L.P., New York City, Matthew E. Digby, Craig L. Sheldon, Marks & Murase, L.L.P., Los Angeles, CA, for defendants Alfonso Arau, et al.

OPINION AND ORDER

REA, District Judge.

Defendants have brought a motion for a stay of proceedings and an award of costs pursuant to Federal Rule of Civil Procedure 41(d). The matter came on regularly for a hearing before the Court on January 22, 1996. Having considered the motion, the papers filed in support thereof and in opposition thereto, the oral argument of counsel, and the file in the case, the Court now makes the following decision.

I. BACKGROUND

A. Facts of the Case

Plaintiff Laura Esquivel has brought the instant action against her ex-husband, Alfonso Arau, and various other defendants associated with Arau's film production enterprises.¹ Esquivel is the author of a well-known novel, Like Water for Chocolate, which received critical acclaim and was eventually made into a feature film directed by defendant Arau. The case concerns the motion picture and live-theater rights to three works over which plaintiff claims authorship: Like Water for Chocolate (a novel and screenplay), Little Ocean Star (a screenplay), and The Law of Love (a novel).

Esquivel held a copyright in the novel Like Water for Chocolate. She alleges that she authored a screenplay based on the novel in reliance on two 1990 agreements whereby defendants Arau Films and Cinema Chocolate would receive a two-year renewable option for the rights to make a motion picture based on the story in return for $50,000 and a percentage of the profits for Esquivel. Esquivel alleges that in October, 1992, after production of the film was near completion, Arau fraudulently induced her to sign a new contract that included a broad assignment of her rights in the work to defendants. Esquivel also alleges that the various defendants, through Arau, have made false representations to third parties regarding their rights to produce derivative works of Esquivel's Little Ocean Star and The Law of Love novels.²

Esquivel's complaint states claims for: 1) copyright infringement; 2) declaratory relief; 3) Lanham Act violations; 4) invasion of privacy; 5) commercial misappropriation; 6) unfair competition; 7) breach of contract; 8) accounting; 9) quantum meruit; 10) unjust enrichment; 11) fraud; 12) constructive fraud; 13) rescission based on fraud; and 14) tortious interference with prospective economic advantage.

B. Procedural History

Prior to this action, plaintiff Esquivel instituted two actions in New York involving the same transactions and parties as this action. On March 14, 1995, Esquivel instituted a New York state court action against the named defendants here (with the exception of Atracciones Polifemo S.A. de C.V.), asserting six causes of action.³ Esquivel simultaneously launched a parallel action in the U.S. District Court for the Southern District of New York ("Southern District action"). In addition to the claims asserted in the state court complaint, Esquivel included two claims for copyright infringement and two claims for declaratory judgment.⁴ On August 8, 1995, both sides stipulated to a stay of the state court action pending a decision in the Southern District action on a motion to dismiss to be brought by defendants. On August 21, 1995, Esquivel filed a First Amended Complaint in the Southern District action, adding claims for: 1) Lanham Act violations (false designation); 2) copyright infringement; and 3) tortious interference with business relations. On September 5, 1995, defendants filed a motion to dismiss in the Southern District action based on lack of personal jurisdiction and improper venue.

On September 29, 1995, before defendants claim an opposition to the motion to dismiss was due, Esquivel filed the instant action in the Central District of California. In addition to the claims already asserted in the Southern District of New York action, Esquivel asserted claims for constructive fraud, invasion of privacy, commercial misappropriation, and unfair competition. On October 17, 1995, the day that defendants allege plaintiff's opposition to the motion to dismiss was due, Esquivel noticed a voluntary dismissal of the Southern District action. The dismissal was made under Rule 41(a)(1) and specified that it was "without prejudice."

Defendants have now brought the instant motion for an award of costs incurred in the Southern District action and for a stay of all proceedings in the instant action pending plaintiff's payment of such costs as the Court deems proper. Defendants claim that the instant action is based on essentially the same claims as the Southern District action, and therefore falls within the scope of Federal Rule of Civil Procedure 41(d). Plaintiff has opposed the instant motion.

II. DISCUSSION

A. Defendants' Entitlement to "Costs" Under Fed.R.Civ.P. 41(d)

Under the Federal Rules, a plaintiff can dismiss his own action by "filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs." Fed.R.Civ.P. 41(a)(1). A notice of voluntary dismissal is effective at the moment it is filed, and no judicial approval or court order is required. Pedrina v. Chun, 987 F.2d 608 (9th Cir.1993).

A plaintiff's right of voluntary dismissal under Rule 41(a)(1) is not terminated by the filing of a Rule 12 motion to dismiss by the defendant. A motion to dismiss is "neither an answer nor, unless accompanied by affidavits discussing matters outside the pleadings that are not excluded by the court, a motion for summary judgment," and thus does not terminate the plaintiff's right of dismissal by notice. 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, § 2363 (2d ed. 1995); see also Miller v. Reddin, 422 F.2d 1264 (9th Cir.1970) (holding plaintiffs to be entitled to Rule 41(a)(1) voluntary dismissal even after a hearing on defendants' motion to dismiss); Carter v. United States, 547 F.2d 258 (5th Cir.1977) (holding that defendants' motion to dismiss did not terminate plaintiff's right to Rule 41(a)(1) voluntary dismissal even though defendants spent considerable effort preparing the motion).

Esquivel filed a Rule 41(a)(1) notice of voluntary dismissal in the Southern District action after defendants had filed their motion to dismiss. Neither answer nor summary judgment motion had been filed in that case. Thus, Esquivel was able to terminate the Southern District action without obtaining approval from the district court. This fact is significant, because a district court may require payment of litigation costs by the plaintiff as a condition to granting the dismissal under Rule 41(a)(2).⁵ See, e.g., Koch v. Hankins, 8 F.3d 650 (9th Cir.1993).

Esquivel's filing of the instant action, however, raises the question of whether an award of costs to the defendants is now appropriate. Federal Rule of Civil Procedure 41(d) provides:

Costs of Previously-Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Fed.R.Civ.P. 41(d). The language of Rule 41(d) clearly indicates that it conveys "broad discretion" on federal courts to order stays and payment of costs, and that neither is mandatory. United Transportation Union v. Maine Central Railroad Corp., 107 F.R.D. 391, 392 (D.Me.1985); Wahl v. City of Wichita, 701 F.Supp. 1530, 1533 (D.Kan.1988). Rule 41(d) is "intended to serve as a deterrent to forum shopping and vexatious litigation." Simeone v. First Bank National Association, 971 F.2d 103, 108 (8th Cir.1992).

Defendants contend that Esquivel's decision to initiate the Southern District action, file the instant action, and then file a notice of dismissal without prejudice in the Southern District action constitutes blatant forum-shopping. Defendants allege that they were required to produce a detailed and comprehensive motion to dismiss in the Southern District action, only to see plaintiff refile the same claims in another district and notice dismissal without prejudice before an opposition was required. Esquivel responds that defendants have not demonstrated bad faith on her part, which she believes Rule 41(d) requires. In addition, Esquivel contends that if the Court does award costs, it should not award costs for any tasks that would be useful to defendants in the instant action.⁶

Esquivel's choice of the Southern District of New York as a forum was questionable, to say the least. As an initial matter, it is clear that the plaintiff bears the responsibility of determining the appropriate forum in which to prosecute her case, see, e.g., Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir.1986), and of establishing that personal jurisdiction exists. Data Disc, Inc. v. Systems Technology Associates, 557 F.2d 1280, 1285 (9th Cir.1977). Defendants' motion to dismiss in the Southern District action pointed out that neither party is a citizen or resident of New York, the complaint made no allegations of acts taking place in New...