Quezada v. Fisher et al

Filing 73

ORDER REQUIRING Plaintiff to Notify Court if he Wishes to Withdraw his Request for a Voluntary Dismissal of Defendant Correctional Officer C. Scott; Thirty Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 10/6/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALVARA QUEZADA,

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Plaintiff,

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v.
FISHER, et al.,

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Defendants.

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Case No.: 1:09-cv-01856-LJO-BAM (PC)
ORDER REQUIRING PLAINTIFF TO NOTIFY
COURT IF HE WISHES TO WITHDRAW HIS
REQUEST FOR A VOLUNTARY DISMISSAL OF
DEFENDANT CORRECTIONAL OFFICER C.
SCOTT
(ECF No. 72)
THIRTY-DAY DEADLINE

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Plaintiff Alvaro Quezada (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds against

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Defendants Fisher, Jose, Doria, Scott and Ortiz for violation of the Fourteenth Amendment to the

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United States Constitution.

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I.

Background

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On October 1, 2015, Plaintiff filed a notice of voluntary dismissal of Defendant Scott, pursuant

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to Fed. R. Civ. P. 41(a). (ECF No. 72.) In his filing, Plaintiff states that he is informed Defendant Scott

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is deceased, and as a result he wishes to dismiss Defendant Scott from this action. He further extends

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his condolences and sympathies to “all that have been affected by Mr. Scott’s death.” (Id. at p. 1.) He

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specifies that his intended dismissal operates only as to Defendant Scott and to no other defendants.
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II.

Standard
Under Federal Rule of Civil Procedure 41(a)(2), a plaintiff may request dismissal after an

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opposing party has served either an answer or a motion for summary judgment, as in this case, “only

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by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). “A motion for

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voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should be granted unless a

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defendant can show that it will suffer some plain legal prejudice as a result of the dismissal.” Hepp v.

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Conoco, Inc., 97 F. App’x 124, 125 (9th Cir. 2004) (citations omitted). “Legal prejudice is prejudice to

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‘some legal interest, some legal claim, [or] some legal argument.’” Maxum Indem. Ins. Co. v. A-1 All

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Am. Roofing Co., 299 F. App’x 664, 666 (9th Cir. 2008) (quoting Westlands Water Dist. V. United

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States, 100 F.3d 94, 97 (9th Cir. 1996)).

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III.

Discussion
The Court finds that Defendant Scott, or his successors-in-interest(s), will suffer no legal

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prejudice by being dismissed from this action. Defendant Scott did not file a counterclaim or raise any

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other issue which must be decided in this matter.
Nevertheless, Defendant Scott or his successor(s) could be prejudiced by a dismissal without

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prejudice. Plaintiff’s allegations underlying his claim against Defendant Scott occurred over eight

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years ago, and his motion comes after months of discovery and the filing of a motion for summary

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judgment. Without any ruling on that motion or a dismissal with prejudice, Defendant Scott’s

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successor(s) could face potential re-litigation of a matter that occurred many years ago and involving a

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now-deceased witness.
For these reasons, the Court finds that under these circumstances, if Plaintiff’s request for a

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voluntary dismissal is granted, it should be done with prejudice. A court granting a motion for

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voluntary dismissal with conditions must give the plaintiff “a reasonable period of time within which

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[either] to refuse the conditional voluntary dismissal by withdrawing [the] motion for dismissal or to

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accept the dismissal despite the imposition of conditions.” Beard v. Sheet Metal Workers Union, 908

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F.2d 474, 476 (9th Cir. 1990). Therefore, the Court shall grant Plaintiff thirty (30) days to determine

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whether he wishes to refuse the conditional voluntary dismissal recommended here.

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IV.

Conclusion and Order

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff shall notify the Court, within thirty (30) days from the date of service of this

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order, if he wishes to withdraw his request for voluntary dismissal filed October 1,

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2015 (ECF No. 72); and

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2.

If Plaintiff’s request for voluntary dismissal is not withdrawn within thirty (30) days,

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the Court will issue an order recommending that the District Judge grant Plaintiff’s

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request and dismiss this action against Defendant Correctional Officer C. Scott with

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prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 6, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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