United States District Court for the District of Oregon

“ The court will first address defendants' contention that plaintiff's dismissal cannot be allowed to stand because of Fed. R. Civ. P. 23 (e) . The right to voluntarily dismiss a case under Rule 41 (a) (1) is made expressly subject to Rule 23 (e) . Rule 23 (e) reads: A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. ”

“ In considering such approval, the court must guard the interests of the absent class members and insure that the settlement is fair, reasonable, and adequate. Id. at 519-20. As discussed more fully below, the rule upon which plaintiff bases its dismissal gives a plaintiff an unqualified right to dismiss his action, even as against the objection of a court to the dismissal. In the present case, the party holding this unqualified right to dismiss is not the representative of the putative class. Here plaintiff simply proposes to drop its entire action against defendants and the defendant class. ”

“ The purpose of Rule 23 (e) is to insure that a class representative does not "sell out" the interests of absent class members in favor of his own interests. Here, the effect of the dismissal on the defendants is identical with its effect on the putative class members. Defendants' primary complaint is that plaintiff should not be allowed to subvert the removal procedure through the course of dismissal followed by refiling. However, this argument is unrelated to the existence of class allegations in the complaint ”