The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is "Plaintiff's Motion for Leave of Court to Dismiss his Lawsuit without Prejudice." (Doc. # 85).
On October 30, 2006, Plaintiff Chris Kohler ("Plaintiff") filed a Complaint in federal court against Mira Mesa Market Place West, LLC ("Marketplace"), New Albertson's, Inc., Longs Drug Stores California, Inc. ("Longs"), Starbucks Corporation ("Starbucks"), Jamba Juice Company ("Jamba Juice"), SWH Corporation, Extreme IceCream, LLC, Cold Stone Creamery, Inc., Pick Up Stix, Inc., Great Promo, LLC, Fili Enterprises, Inc., Fedex Kinko's Office and Print Services, Inc. ("Kinko's") (Doc. # 1). The Complaint alleges violations of (1) Title III of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12182, 12183, (2) the Disabled Persons Act, Cal. Civ. Code § 54, (3) the Unruh Civil Rights Act, Cal. Civ. Code § 51, and (4) the California Health and Safety Code § 19955. Plaintiff seeks injunctive and declaratory relief, and damages.
On June 4, 2007, the Court declined to exercise supplemental jurisdiction over Plaintiff's state law claims, brought pursuant to the Disabled Persons Act, the Unruh Civil Rights Act and the California Health and Safety Code. The Court dismissed all of Plaintiff's state law claims without prejudice. The Court only retained jurisdiction over Plaintiff's federal claims brought pursuant to the ADA (Doc. # 77).
The following defendants stipulated to the voluntary dismissal of Plaintiff's federal claims: Extreme IceCream, LLC (Doc. # 71), Great Promo, LLC (Doc. # 72), Pick Up Stix, Inc. (Doc. # 81), and SWH Corporation (Doc. # 86).
On September 20, 2007, Plaintiff filed the "Motion for Leave of Court to Dismiss his Lawsuit without Prejudice" ("Motion for Voluntary Dismissal"). Plaintiff moves to dismiss his federal claims without prejudice. On November 5, 2007, Starbucks and Kinko's filed a Response in Opposition to the Motion to Dismiss (Doc. # 87), which Marketplace and Longs joined (Doc. # 88, 90). On November 5, 2007, Jamba Juice filed a Response in Opposition to the Motion to Dismiss (Doc. # 89), which Longs joined (Doc. # 91). On November 9, 2007, Plaintiff filed a Reply (Doc. # 92).
Plaintiff emphasizes that this Court's decision to decline to exercise supplemental jurisdiction over Plaintiff's state law claims left Plaintiff with "two (2) separate cases, one in federal court (encompassing his ADA claims), and one in state court (encompassing his state claims)," and that "[o]bviously, such piecemeal litigation is onerous not only on plaintiff (both in time and expenses), but on the courts as well (for the same reasons)." Pltf's Mot. to Dismiss, p. 4. Plaintiff contends that dismissal without prejudice "is the best action not only for [Plaintiff's] own legal interests, but that such dismissal would also meet the underlying objective of most sensibly accommodating the values of economy, convenience, fairness and comity." Id. (internal quotations omitted). Plaintiff therefore moves the Court to dismiss his federal claims without prejudice.
Defendants contend that they have already incurred substantial expense and effort litigating the action in federal court, and that they are presently entitled to summary judgment on Plaintiff's ADA claims. Defendants also contend that dismissal without prejudice will subject them to increased liability for attorneys' fees because Plaintiff can refile in state court and under California law (unlike federal law), courts apply the catalyst theory to determine which party prevailed for purposes of attorneys' fees and have discretion to apportion attorneys fees. Defendants therefore contend that they will suffer clear legal prejudice if the Court grants Plaintiff's Motion for Voluntary Dismissal. Defendants contend that if the Court grants the Motion for Voluntary Dismissal, it either should be with prejudice or the Court should stay the action to allow Defendants to file a motion for summary judgment on Plaintiff's ADA claims. Defendants contend that if the Court grants Plaintiff's Motion to Dismiss without prejudice, Plaintiff should be ordered to reimburse defendants for attorneys' fees and costs relating to the federal action.*fn1
Rule 41(a) of the Federal Rules of Civil Procedure governs the voluntary dismissal of an action in federal court. Rule 41(a)(2) provides that unless a plaintiff files a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, or the parties stipulate to the dismissal of the action, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. § 41(a)(2). "Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice." Id. The decision to grant or deny a motion pursuant to Rule 41(a)(2) is "within the sound discretion of the trial court and may be reviewed only for abuse of that discretion." Id.
A court should grant a Rule 41(a)(2) motion for voluntary dismissal without prejudice unless the defendant will "suffer clear legal prejudice, other than the prospect of a subsequent suit on the same facts." Phillips v. Illinois Central Gulf Railroad, 874 F.2d 984, 986 (9th Cir. 1989). The Ninth Circuit interprets "legal prejudice " to mean "prejudice to some legal interest, some legal claim, some legal argument." Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996). In the Ninth Circuit, legal prejudice results when a defendant is deprived of a federal forum, the right to a jury trial, or a statute of limitations defense. Id. Legal prejudice, however, does "not result simply when defendant faces the prospect of a second lawsuit or when plaintiff merely gains some tactical advantage." Hamilton v. Firestone, 679 F.2d 143, 145 (9th Cir. 1982). Furthermore, "the inconvenience of defending another lawsuit or the fact that the defendant has already begun trial preparations does not constitute prejudice." In re Lowenschuss, 67 F.3d 1394, 1400-01 (9th Cir. 1995).
Pursuant to Rule 41(d) of the Federal Rules of Civil Procedure, "[i]f a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of the previous action; and (2) may stay the proceedings until the plaintiff has complied." Fed. R. Civ. P. § 41(d). In deciding whether to award costs and attorneys' fees, courts consider any excessive and duplicative expense of a subsequent litigation, the effort and expense incurred in preparation for trial, the extent to which the litigation has progressed and the plaintiff's diligence in moving to dismiss. Williams v. Peralta, 227 F.R.D. 538, 540 (N.D. Cal. 2005); see also 8-4 Moore's Federal Practice, Civil § 41.40(10)(d) (2005). A court's imposition of costs is discretionary. Westlands Water Dist., 100 F.3d at 97.
Defendants' argument that voluntary dismissal will result in legal prejudice because they have incurred substantial expense and effort litigating the action in federal court is foreclosed by Ninth Circuit authority. See Westlands Water Dist., 100 F. 3d at 97. Defendants will not be deprived of a statute of limitations defense, right to jury trial or federal forum because Defendants do not allege a statute of limitations defense and do not assert that their right to a jury trial or federal forum will be impaired if the Court grants the Motion for Voluntary Dismissal. In light of ...