UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:22-cv-02052-MAA Date: May 8, 2024
Title Breaking Code Silence v. McNamara, et al.
CV-90 (03/15) Civil Minutes – General Page 1 of 5
Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge
Attorneys Present for Plaintiff: Attorneys Present for Defendants:
N/A N/A
Proceedings (In Chambers): Order Granting Plaintiff’s Unopposed Request for
Voluntary Dismissal With Prejudice Pursuant to FRCP
41(a)(2) (ECF No. 198) (JS-6)
Before the Court is Plaintiff Breaking Code Silence’s (“Plaintiff”) Request for Voluntary
Dismissal With Prejudice Pursuant to FRCP1
41(a)(2) (“Request for Dismissal”), filed on April 8,
2024. (Req. for Dismissal, ECF No. 198.) On April 24, 2024, Defendants McNamara and
Jeremey Whiteley (together, “Defendants”) filed a Response to Plaintiff’s Request for Dismissal
with Prejudice, stating, inter alia, that they “do not oppose this action being dismissed with
prejudice.” (Defs.’ Resp. 4, ECF No. 202).2
On May 1, 2024, Plaintiff filed a Reply. (Pl.’s Reply,
ECF No. 206.) The Court deems the Request for Dismissal appropriate for resolution without a
hearing. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.
Rule 41(a) “allows plaintiffs voluntarily to dismiss some or all of their claims against some
or all defendants.” Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738, 748 (9th
Cir. 2008). After a defendant serves an answer or motion for summary judgment, as is the case here,
a plaintiff may dismiss an action only with a stipulation signed by all parties who have appeared
under Rule 41(a)(1)(A)(ii), or a motion for dismissal under Rule 41(a)(2). See Fed. Rs. Civ. P.
41(a)(1)(A)(ii), 41(a)(2). Rule 41(a)(2) provides in pertinent part: “Except as provided in Rule
41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the
court considers proper. . . . Unless the order states otherwise, a dismissal under this paragraph (2) is
1
The Federal Rules of Civil Procedure are referred to as the “Rules.”
2
Pinpoint citations to docketed documents are to the page numbers in the CM/ECF-generated
headers.
Cindy Delgado N/A
Deputy Clerk Court Reporter / Recorder
Case 2:22-cv-02052-MAA Document 210 Filed 05/08/24 Page 1 of 5 Page ID
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:22-cv-02052-MAA Date: May 8, 2024
Title Breaking Code Silence v. McNamara, et al.
CV-90 (03/15) Civil Minutes – General Page 2 of 5
without prejudice.” Fed. R. Civ. P. 41(a)(2). “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).
Here, in light of Defendants’ non-opposition to the Request for Dismissal, the Court finds no
reason to deny Plaintiff’s request for voluntary dismissal with prejudice under Rule 41(a)(2). See,
e.g., Richson-Bey v. Juarez, No. 1:22-cv-00567-NODJ-BAM (PC), 2024 U.S. Dist. LEXIS 9383, at
*2 (E.D. Cal. Jan. 17, 2024) (granting plaintiff’s motion for voluntary dismissal in light of
defendant’s notice of non-opposition); Strojnik v. 1309 W. Shaw, LLC, No. 1:19-cv-01196-BAM,
2020 U.S. Dist. LEXIS 6317, at *3 (E.D. Cal. Jan. 13, 2020) (same).
Before Plaintiff filed the Request for Dismissal, the following motions and issues were
pending before the Court:
(1) Whether Defendants are entitled to attorneys’ fees and costs for bringing their Motion
to Compel Slack Communications and for Sanctions and, if so, the quantum of such
fees (“Slack Motion,” ECF No. 94);
(2) Defendants’ Motion for Evidentiary and Monetary Sanctions under Rule 37 of the
Federal Rules of Civil Procedure (“Sanctions Motion,” ECF No. 98);
(3) Within the Sanctions Motion, the quantum of attorneys’ fees and costs for
Defendants’ subpoena discovery targeted at certain officers and directors (“Subpoena
Discovery”), which, pursuant to the Court’s Order (Apr. 10, 2024 Order, ECF No.
200), is set forth in Plaintiff’s Motion to Reduce Defendants’ Requested Attorneys’
Fees and Costs Related to Subpoena Discovery (“Subpoena Motion,” ECF No. 203);
(4) Defendant Whiteley’s Motion for Summary Judgment or in the Alternative Partial
Summary Judgment (“Whiteley MSJ,” ECF No. 152) and a related Application to
Seal (ECF No. 153); and
(5) Defendant McNamara’s Motion for Summary Judgment or, Alternatively, Partial
Summary Judgment (“McNamara MSJ,” ECF No. 172) and related Applications to
Seal (ECF Nos. 174, 183, 190).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:22-cv-02052-MAA Date: May 8, 2024
Title Breaking Code Silence v. McNamara, et al.
CV-90 (03/15) Civil Minutes – General Page 3 of 5
The Court’s granting of the Request for Dismissal moots the Whiteley MSJ, McNamara
MSJ, and the request for evidentiary sanctions in the Sanctions Motion. However, the Court’s
granting of the Request for Dismissal does not moot—or strip the Court’s jurisdiction over—the
outstanding issues of attorneys’ fees and costs for the Slack Motion, the Subpoena Motion, and the
request for monetary sanctions in the Sanctions Motion, as those issues are collateral to the merits of
the lawsuit. See Allen v. Exxon Corp. (In re Exxon Valdez), 102 F.3d 429, 431 (9th Cir. 1996)
(explaining that sanctions imposed under Rule 37 are collateral to the merits of the action); Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 395–96 (1990) (holding that voluntary dismissal does not
deprive a court of jurisdiction over collateral issues—such as the imposition of costs, attorneys’ fees,
and sanctions—after an action no longer is pending); Triad Commer. Captive Co. v. Comerica Bank
(In re GTI Cap. Holdings, LLC), 399 F. App’x. 236, 236 (9th Cir. 2010) (holding that court had
jurisdiction to impose Rule 37 sanctions, despite previously granting appellants’ request to
voluntarily withdraw their complaints, because Rule 37 sanctions aim to deter abuse of the judicial
process and have no bearing on, and therefore are collateral to, the case’s underlying merits); R.D. v.
Lake Wash. Sch. Dist., No. 2:18-cv-01009-RAJ, 2020 U.S. Dist. LEXIS 5503, at *2–3 (W.D. Wash.
Jan. 13, 2020) (“Although the District contends that this Court is without jurisdiction to consider this
motion, the Court agrees with Plaintiffs that a [Rule 37] motion for sanctions is a collateral matter
and may be considered even after the merits have been decided.”).
Based on the foregoing, the Court hereby ORDERS as follows:
(1) Plaintiff’s unopposed Request for Dismissal seeking voluntary dismissal of this action
with prejudice pursuant to Rule 41(a)(2) is GRANTED.
(2) This action is DISMISSED WITH PREJUDICE. The Clerk is directed to close this
case (JS-6).
(3) The Whiteley MSJ (ECF No. 152) and related Application to Seal (ECF No. 153) are
DENIED as moot.
(4) The McNamara MSJ (ECF No. 172) and related Applications to Seal (ECF Nos. 172,
174, 183, 190) are DENIED as moot.
(5) Defendants’ request for evidentiary sanctions in the Sanctions Motion is DENIED as
moot.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:22-cv-02052-MAA Date: May 8, 2024
Title Breaking Code Silence v. McNamara, et al.
CV-90 (03/15) Civil Minutes – General Page 4 of 5
(6) The Court RETAINS JURISDICTION over, and will issue separate decisions on,
the attorneys’ fees and costs requested in each of (i) the Slack Motion, (ii) the
Subpoena Motion, and (iii) the Sanctions Motion.
(7) To adjudicate the issue of monetary sanctions for the Sanctions Motion, the Court
needs an updated request for fees that comprehensively includes fees and costs
incurred in connection with the Sanctions Motion, including for work expended after
the filing of the Sanctions Motion. Defendants are cautioned that they may not
request fees that are duplicative of those already requested as to the Subpoena Motion
and the Slack Motion. For this purpose, the Court ORDERS the parties to file a Joint
Stipulation and SETS the following briefing schedule:
(a) No later than May 16, 2024, Defendants shall submit their portion of the Joint
Stipulation to Plaintiff. Defendants’ briefing must include:
 For each individual who worked on the Sanctions Motion, an itemization
of time spent on each type of task, rather than the total hours expended by
each individual with a comprehensive list of tasks. (See Tate Decl. ¶ 30,
ECF No. 98-1.)
 A declaration under oath that attaches and authenticates copies of the
billing invoices or other documents showing detailed billing entries with
dates in support of the itemized attorneys’ fees identified in this Joint
Stipulation.
 The legal authority supporting Defendants’ contention that, in addition to
the time spent on the research and preparation of the Sanctions Motion,
time spent on (i) meeting and conferring with opposing counsel,
(ii) appearing at informal discovery conferences, and (iii) analyzing
Plaintiff’s document productions, is recoverable under Rules 37(a)(5)
and/or 37(b)(2)(C). (Sanctions Mot. 64.)
(b) No later than May 23, 2024, Plaintiff shall submit its portion of the Joint
Stipulation and sign and return the Joint Stipulation to Defendants.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 2:22-cv-02052-MAA Date: May 8, 2024
Title Breaking Code Silence v. McNamara, et al.
CV-90 (03/15) Civil Minutes – General Page 5 of 5
(c) No later than May 24, 2024, Defendants shall file the Joint Stipulation. No
further supplemental memorandum is permitted. The matter will stand
submitted for decision upon the filing of the Joint Stipulation, and will be
decided without a hearing unless the Court determines a hearing is necessary.
See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.
It is so ordered.
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