The opinion of the court was delivered by: Gregory G. Hollows, United States Magistrate Judge
On December 19, 2008, plaintiffs filed a document entitled "motion for leave to withdraw claims," requesting that all claims against all defendants be withdrawn.*fn1 The court construed this document as a request that this action be dismissed, and directed defendants to file any objections. On January 14, 2009, defendants County of San Joaquin, Sparks, O'Keefe, Bathe, Gamino, Dacey, Hughes, Johnson, Zia, and Schwarzenberg filed a statement of no opposition to the voluntary dismissal. On January 20, 2009, defendant Korock filed a response, stating that he had no opposition to a dismissal with prejudice; however, if the dismissal was to be without prejudice, Korock objected to such a dismissal and requested instead that his submitted motion to dismiss be decided, or in the alternative that he be awarded fees and costs incurred in defending this action.*fn2
A voluntary dismissal, unless stated otherwise, is without prejudice. Fed. R. Civ. P. 41(a). "Defendant should only be awarded attorney fees for work which cannot be used in any future litigation of these claims." Westlands Water District v. United States, 100 F.3d 94, 97 (9th Cir. 1996), citing Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993). Since the work for which Korock seeks fees and costs, preparation of his motion to dismiss, may be used in a future litigation by plaintiffs on these claims, he will not be awarded fees and costs. Furthermore, as this case was proceeding in forma pauperis, Korock was not required to defend the action until he had been served with the summons and complaint by the United States Marshal, and service had not yet been ordered.
Accordingly, IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 41(a), the action is dismissed without prejudice. Accordingly, the ...