UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION
February 21, 2013
BIGGS, ET AL.,
The opinion of the court was delivered by: Hon. John A. Mendez United States District Court Judge
PLAINTIFF'S MOTION FOR VOLUNTARY
Pursuant to Fed. R. Civ. P. 41(a)(2), Plaintiff requests that his complaint currently pending before the Court be dismissed with prejudice. Plaintiff agrees to bear all of his own costs and attorney's fees.
Federal Rule of Civil Procedure 41(a)(2) provides: [A]n action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Fed. R. Civ. P. 41(a)(2). Under this rule, if the defendant has answered or filed a dispositive motion, a plaintiff may not dismiss an action except by court order and under such terms and conditions as the court deems proper. The decision whether to grant the motion rests within the discretion of the court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). "A district court should Notice of Voluntary Dismissal No. 2-12-cv-2131 grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citations omitted). The Ninth Circuit has defined legal prejudice as "just that-prejudice to some legal interest, some legal claim, some legal argument." Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). "[T]he expense incurred in defending against a lawsuit does not amount to legal prejudice." Id.
Here, Defendants have not filed cross claim alleging the existence of any legal claim. Therefore, Defendants would not suffer any legal prejudice if Plaintiff's motion for voluntary dismissal is granted.
WHEREFORE, Plaintiff prays that this Court grant his motion for voluntarily dismissal. Dated: February 21, 2013 Respectfully submitted,
LAW OFFICE OF ROBERT JOBE /s/ Robert B. Jobe Robert B. Jobe 550 Kearny Street, Ste. 200 San Francisco, CA 94108 (415) 956-5513 phone (415) 840-0308 fax Attorney for Petitioner
It is hereby ordered that Plaintiff's motion for voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2) be GRANTED.
John A. Mendez
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