The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING PLAINTIFF'S REQUEST FOR VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 42(a)(2) AND DISMISSING ACTION, WITH PREJUDICE (ECF No. 147) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
Plaintiff Eric Martin ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on March 1, 2004. On March 25, 2010, the United States Court of Appeals for the Ninth Circuit affirmed the grant of Defendants' motion for summary judgment, but found that Plaintiff's Eighth Amendment claims against Defendant Winnett and the Due Process claims against Defendants Johnson, Stainer, and Winnett had been dismissed improperly at the screening stage. This action is proceeding on the limited claims revived by the Ninth Circuit. (ECF No. 111.) Thereafter, on November 22, 2011, Defendants filed a motion for summary judgment. After plaintiff requested and received several extensions of time to file an opposition to the motion for summary judgment, Plaintiff filed a notice of voluntary dismissal on March 30, 2012. (ECF Nos. 140, 147.) On April 14, 2012, an order issued requiring Defendants to file an opposition or statement of non-opposition to Plaintiff's motion to dismiss without prejudice. (ECF No. 148.) Defendants filed a reply on April 30, 2012. (ECF No. 149.) On May 3, 2012, an order issued informing Plaintiff that, if his motion for dismissal is granted, this action would be dismissed with prejudice and requiring Plaintiff to notify the Court if he wished to withdraw his request for voluntary dismissal within thirty days. (ECF No. 150.) More than thirty days have passed and Plaintiff has not responded to the Court's order.
II. Motion for Voluntary Dismissal
"[U]nder Rule 41(a)(1)(I), 'a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment.'" Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)). "[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties are left as though no action had been brought, the defendant can't complain, and the district court lacks jurisdiction to do anything about it." Id. at 1078. However, once the defendant has filed an answer or motion for summary judgment, a plaintiff's motion for voluntary dismissal is filed under Federal Rules of Civil Procedure 41(a)(2). Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). "[A]n 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). Here, Plaintiff has filed his request after an answer or motion for summary judgment has been filed. Therefore, the request for voluntary dismissal proceeds under Rule 41(a)(2).
Unless plaintiff's notice of dismissal states otherwise, it is deemed to be "without prejudice." Rule 41(a)(1)(B); see Pedrina v. Chun, 987 F.2d 608, 610, fn. 3 (9th Cir. 1993). Defendants request that the Court dismiss the action with prejudice.
Pursuant to Rule 41(a)(2), there are three separate determinations for the court to make: 1) whether to allow dismissal; 2) whether the dismissal should be with or without prejudice; and 3) what terms and conditions, if any, should be imposed. Williams v. Peralta Community College Dist., 227 F.R.D. 538, 539 (N.D.Cal. 2005). In this case, the Court finds it necessary to address only the first two considerations.
1. Whether to Allow Dismissal
A court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless the defendant shows that he will suffer legal prejudice as a result. Smith v Lenches, 263 F.3d 972, 975 (9th Cir. 2001). "'[L]egal prejudice' means 'prejudice to some legal interest, some legal claim, some legal argument.'" Smith, 263 F.3d at 976 (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996). Legal prejudice does not result because the dispute remains unresolved, there is a threat of future litigation, or a plaintiff may gain a tactical advantage by the dismissal. Smith, 263 F.3d at 976.
Defendants do not argue against dismissal, but argue that if the Court grants Plaintiff's motion, it should be granted with prejudice. Defendants state that they have diligently pursued the conclusion of this action, are entitled to finality, and should not be required to face the possibility of multiple suits, (ECF No. 149). As discussed below, these reasons, among others, are sufficient to ...