UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
February 29, 2008
LIZA HOFFMAN, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Hayes, Judge
On February 9, 2007, Petitioner Liza Hoffman commenced this action by filing the Motion for Return of Seized Property. (Doc. # 1). On May 7, 2007, Respondent filed the Motion to Dismiss and for Summary Judgment, which is currently pending. (Doc. # 9). On February 21, 2008, Petitioner filed the Motion to Withdraw Motion for Return of Seized Property and for Voluntary Dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedure ("Motion for Voluntary Dismissal"). (Doc. # 31). The Motion states that "Petitioner no longer wishes to pursue litigation on this matter and is requesting this action be dismissed." Id. On February 22, 2008, the Court issued an Order which provided that "Respondent shall file and serve any response to the Motion to Withdraw Motion for Return of Seized Property/ Motion for Voluntary Dismissal on or before February 29, 2008." (Doc. # 32). On February 26, 2008, Respondent filed the Response in Support of the Motion for Voluntary Dismissal. (Doc. # 34). The response states that Respondents "do not oppose [Petitioner's] Motion to Withdraw Motion for Return of Seized Property, and concurs with her Motion for Voluntary Dismissal of this case under Rule 41." Id.
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). 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). "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.
The Court notes that Respondent explicitly states that it "concurs" with Petitioner's Motion for Voluntary Dismissal. Response, p. 2. The Court finds that Respondent will not suffer legal prejudice if the Court grants voluntary dismissal. The Court will exercise its discretion and grant the Motion for Voluntary Dismissal.
The Court GRANTS the "Motion to Withdraw Motion for Return of Seized Property/ Motion for Voluntary Dismissal Pursuant to Rule 41 of the Federal Rules of Civil Procedure." (Doc. # 31). The above-captioned action is DISMISSED without prejudice.
WILLIAM Q. HAYES United States District Judge
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