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United States District Court, N.D. California

August 9, 2004.


The opinion of the court was delivered by: VAUGHN WALKER, District Judge


Pro se plaintiff Rebecca Reynolds has requested the court to dismiss her case. Doc # 42. The court now GRANTS plaintiff's request and DISMISSES this matter with prejudice.


  Plaintiff filed the original complaint in this action on November 5, 2002, alleging sex and age discrimination. Doc # 1. On December 8, 2003, the court dismissed plaintiff's age discrimination with prejudice but allowed plaintiff to continue to pursue her sex discrimination claim. Doc # 30. To facilitate further prosecution of the matter, the court scheduled a case management conference (CMC) for February 10, 2004. Id. The CMC was eventually rescheduled for April 13, 2004. Doc # 37.

  On April 13, 2004, plaintiff failed to attend the scheduled CMC. Doc # 40. The court thus issued an order to show cause (OSC) to plaintiff, requiring her to submit a written response explaining why the case should not be dismissed and why she should not reimburse defendant for its expenses incurred in attending the April 13 CMC. Doc # 38.

  Subsequently, the court received a letter from plaintiff, dated April 6, 2004, informing the court that she "withdraw[s her] federal court case C-02-5312 against [defendant] effective immediately." Doc # 42. On May 4, 2004, the court received plaintiff's response to the April 13 OSC. Doc # 43. In her response, plaintiff pointed out that she had sent the court the letter in which she requested dismissal.

  On July 27, 2004, the court issued an order discharging the OSC against plaintiff and absolving her of responsibility for paying defendant's unnecessary expenses. Doc # 44. The court also considered plaintiff's letter requesting that the court dismiss her case and determined that plaintiff was unable unilaterally to dismiss this matter pursuant to FRCP 41(a)(1). Id. The court declined to dismiss the matter under FRCP 41(a)(2) without receiving a response from defendant or a stipulation of dismissal. Id. The court ordered defendant to submit a response or stipulation no later than August 5, 2004. Id.

  On August 5, 2004, the court received defendant's response to the July 27 order. Doc # 45. In that response, defendant states that it has twice presented plaintiff with a proposed stipulation of dismissal with prejudice and that plaintiff twice has failed to respond. Def Dism Resp (Doc # 45) at 1:16-25, Exhs B, C. Defendant does not oppose dismissing the case but requests that dismissal be with prejudice. Id at 2:3-21. Alternatively, defendant requests that the court condition the dismissal on plaintiff's reimbursement of defendant for the unnecessary CMC expenses. Id at 2:22-3:16.


  The decision whether to grant a Rule 41(a)(2) motion to dismiss is entrusted to the discretion of the court. Westlands Water District v. United States, 100 F.3d 94, 96 (9th Cir 1996). As a rule, the court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless one of two circumstances is present. First, the court should deny the motion to dismiss if defendant shows that granting the motion would cause it to suffer some "plain legal prejudice." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir 2001). Second, the Rule itself provides that the court should not dismiss the case if defendant has raised a counterclaim, should defendant object to such dismissal. FRCP 41(a)(2). Defendant does not contend that it would suffer any legal prejudice from the dismissal, nor has defendant filed a counterclaim against plaintiff. Accordingly, dismissal of the action seems appropriate.

  Rule 41(a)(2) provides that "[u]nless otherwise specified in the order, a dismissal under [Rule 41(a)(2)] is without prejudice." The Ninth Circuit has interpreted this provision, along with the remainder of Rule 41(a)(2), to mean that the rule "does not contain a preference for one kind of dismissal or another." Hargis v. Foster, 312 F.3d 404, 407 (9th Cir 2002). Instead, the rule contains a "default position" of dismissal without prejudice, which applies not to the actual decision to dismiss but rather to orders that are silent on the issue. Id. The court, therefore, is free to dismiss the claims with prejudice, since the rule allows dismissal to be conditioned upon whatever terms the court deems appropriate. See id.

  With respect to the instant motion, the court believes that dismissal with prejudice is appropriate. Plaintiff has caused defendant to incur unnecessary expenses in defending this action, including the expenses incurred as a result of plaintiff's failure to attend the April 13 CMC. Plaintiff has not been particularly diligent about prosecuting this action, as she has both failed to attend necessary court dates and has failed to respond to defendant's proposed stipulations. Plaintiff has also failed to provide defendant with any reason why the dismissal should be without prejudice. Under the circumstances, dismissal with prejudice is warranted. See Doe v. Urohealth Systems, Inc, 216 F.3d 157, 160 (1st Cir 2000) (listing relevant considerations). III

  For the foregoing reasons, the court GRANTS plaintiff's request to dismiss this action (Doc # 42). Such dismissal is with prejudice.



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