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