(PC) Banuelos v. Weiss ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAIME BANUELOS, No. 2:19-cv-2370 JAM DB P 12 Plaintiff, 13 v. ORDER 14 R. WEISS, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims that defendant violated his Eighth Amendment rights. Presently before 19 the court is plaintiff’s notice of voluntary dismissal (ECF No. 40) and defendants’ opposition 20 (ECF No. 41). For the reasons set forth below, the court will deny the request without prejudice. 21 Plaintiff’s notice of voluntary dismissal states that he is dismissing this action pursuant to 22 Federal Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 40.) Plaintiff’s notice does not specify 23 any reason for the dismissal. Defendant filed an opposition to plaintiff’s notice indicating that he 24 would be willing to stipulate to dismissal with prejudice.1 (ECF No. 41.) 25 Federal Rule 41(a) provides that a plaintiff may voluntarily dismiss an action without a 26 court order by filing a notice of dismissal before the opposing party serves either an answer or a 27 1 A dismissal with prejudice prevents a party from refiling the same claim in the same district 28 court. See Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 n. 4 (9th Cir. 2005). 1 motion for summary judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). “If an adverse party has filed a 2 motion for summary judgment, the plaintiff is not entitled to dismiss his action without leave of 3 the District Court.” Hamilton v. Shearson-Lehman American Exp., Inc., 813 F.2d 1532, 1535 4 (9th Cir. 1987). Here, defendant has filed both an answer (ECF No. 31) and motion for summary 5 judgment (ECF No. 37). Thus, plaintiff must seek dismissal under Rule 41(a)(2), which states 6 “an action may be dismissed at the plaintiff’s request only by court order, on terms that the court 7 considers proper.” Fed. R. Civ. P. 41(a)(2). 8 If a motion for summary judgment has been filed when a plaintiff seeks to voluntarily 9 dismiss the action, the court can grant a dismissal at its discretion. Terrovona v. Kincheloe, 852 10 F.2d 424, 429 (9th Cir. 1988). Dismissal under Rule 41(a)(2), even after a summary judgment 11 motion is filed, “is without prejudice” unless otherwise ordered by the court. Pontenberg v. 12 Boston Scientific Corp., 252 F.3d 1253, 1258 (11th Cir. 2001). 13 Requests for voluntary dismissal under Rule 41(a)(2) should be liberally granted so long 14 as it will not result in legal prejudice. Stevedoring Serv. of Am. v. Armilla Int’l, 889 F.2d 919, 15 921 (9th Cir. 1991). The Ninth Circuit has stated that, “[t]he purpose of [Rule 41] is to permit a 16 plaintiff to dismiss an action without prejudice so long as the defendant will not be prejudiced.” 17 Id. Therefore, when ruling upon a Rule 41 motion to dismiss without prejudice, the Court must 18 determine whether the defendant will suffer legal prejudice, Hyde & Drath v. Baker, 24 F.3d 19 1162, 1169 (9th Cir. 1994), such as “prejudice to some legal interest, some legal claim, some 20 legal argument.” Westlands Water Dist. v. U.S., 100 F.3d 94, 97 (9th Cir. 1996). “[T]here is no 21 requirement in this Circuit that a plaintiff explain its reasons for seeking dismissal; rather, it is the 22 defendant’s burden to show that it will suffer plain legal prejudice in opposing a plaintiff’s 23 voluntary dismissal.” Endstrom v. NDEX West, LLC, No. CIV S-10-0105 KJM CKD, 2012 WL 24 4092420 at *2 n.3 (Sept. 17, 2012). 25 Defendant argues that he will be prejudiced if the court enters dismissal without prejudice. 26 (ECF No. 41.) In support of this argument defendant argues that he has expended time and 27 resources in conducting discovery and moving for summary judgment. (Id.) The court notes that 28 //// 1 | the fact that voluntary dismissal would moot defendant’s motion for summary judgment is not 2 | sufficient to show legal prejudice. Terrovona, 852 F.2d at 429. 3 Because plaintiff has sought dismissal under Rule 41(a)(1) rather than under Rule 4 | 41(a)(2), the court will deny plaintiff’s request for dismissal without prejudice to its renewal 5 | under the correct subsection of Rule 41. Defendant has indicated that he is willing to stipulate to 6 | dismissal of this action with prejudice. (ECF No. 41.) Accordingly, the parties may alternatively 7 | seek a stipulated dismissal with prejudice. 8 For the reasons set forth above, ITIS HEREBY ORDERED that plaintiff’s request for 9 | voluntary dismissal pursuant to Rule 41(a)(1) (ECF No. 40) is denied without prejudice to a 10 || renewed motion pursuant to Rule 41(a)(2). 11 || Dated: October 12, 2021 12 13 14 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 || DB:12 1 DB/DB Prisoner Inbox/Civil Rights/S/banu2370.vol.dism 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28