Unreported / Non-Citable
Background
Kenneth Fisher brought a putative class action in the Southern District of California against Eric Welch, Jay McGraw, CreditServe, Inc., and several other individual defendants. The materials provided contain only the final order. They do not describe the underlying claims, and the order does not address the merits. No class was ever certified.
Fisher filed a Stipulation of Dismissal With Prejudice (ECF No. 69), joined by all other parties, under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). That rule lets a plaintiff dismiss an action without a court order by filing a stipulation signed by all parties who have appeared. The rule is expressly subject to Rule 23(e), which requires court approval before the claims, issues, or defenses of a certified class are settled, voluntarily dismissed, or compromised.
The question for the court was whether Rule 23(e) required approval of a stipulated dismissal in a putative class action where no class had been certified. Judge Hayes resolved that question in a two-page order dated October 16, 2026.
The Court’s Holding
The court concluded that, because no class has been certified, the requirements of Rule 23(e), as amended in 2003, do not apply to the stipulation. It relied on the advisory committee notes to the 2003 amendments, which say the new rule requires approval only if the claims, issues, or defenses of a certified class are resolved by a settlement. It also relied on Dougan v. Centerplate, Inc., 706 F. Supp. 3d 1025, 1028 (S.D. Cal. 2023). That decision joined several courts holding that, when no class has been certified, voluntary dismissal of a putative class action is limited only by Rule 41.
The order acknowledged contrary authority through a 'But see' citation to Munoz v. Peet's Coffee, Inc., a Northern District of California decision described as collecting and joining cases holding the opposite. The order does not discuss that authority further or explain why it was not followed. It simply adopts the Dougan view.
The court then found that Plaintiff had otherwise complied with Rule 41(a)(1)(A)(ii) by filing a stipulation signed by all parties who have appeared. It ordered the case dismissed with prejudice as to Plaintiff's claims and without prejudice as to the claims of putative class members. Each party bears its own costs, attorneys' fees, and expenses, and the Clerk was directed to close the case. This is a final disposition by agreement of the parties. It is not a ruling on the merits and it is not a dismissal with leave to amend.
Key Takeaways
- In this court's view, Rule 23(e) approval is not required for a stipulated dismissal of a putative class action when no class has been certified.
- A stipulation signed by every party who has appeared satisfies Rule 41(a)(1)(A)(ii), and the court still entered an order closing the case.
- The dismissal is with prejudice only as to the named plaintiff's claims. Claims of putative class members are dismissed without prejudice.
- Each side bears its own costs, fees, and expenses, so the order awards no fees to anyone.
- The order cites district court authority on both sides of the question and does not reflect any appellate ruling, so the issue is not settled by this order.
Why It Matters
This is a short, unpublished district court order, so it carries little precedential weight. It is still a useful example of how a Southern District of California judge handles a pre-certification stipulated dismissal. It follows Dougan, an earlier decision from the same district, over the contrary line of cases collected in Munoz.
For practitioners, the order shows that parties can end an uncertified putative class case by stipulation, with prejudice as to the named plaintiff, without submitting the dismissal for fairness review. Because other district courts disagree, parties in other courts may face a Rule 23(e) approval requirement. The order does not decide what would happen if absent class members relied on the pending suit or if the dismissal were tied to individual compensation, since it describes no such facts.