Gaines v. CA Dept. of Corrections, et al.
Filing
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FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 42 Motion for Voluntary Dismissal Without Prejudice Pursuant to Federal Rule of Civil Procedure 41(a)(2), signed by Magistrate Judge Stanley A. Boone on 9/20/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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CALIFORNIA DEPT. OF CORRECTIONS, )
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et al.,
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Defendants.
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THURMAN GAINES,
Case No.: 1:15-cv-00587-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
VOLUNTARY DISMISSAL WITHOUT
PREJUDICE PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 41(a)(2)
(ECF No. 42)
FOURTEEN-DAY DEADLINE
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I.
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INTRODUCTION
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Plaintiff Thurman Gaines is appearing pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff’s Second Amended
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Complaint against Dr. E. Horowitz for deliberate indifference in violation of the Eighth Amendment.
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(ECF No. 19.)
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On September 18, 2017, Plaintiff filed a notice of voluntary dismissal without prejudice,
pursuant to Fed. R. Civ. P. 41(a). (ECF No. 42.)
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II.
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VOLUNTARY DISMISSAL WITHOUT PREJUDICE
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Plaintiff does not specify under what provisions of Rule 41 that he seeks to dismiss this action.
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“[U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to
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service by the defendant of an answer or a motion for summary judgment.” Commercial Space Mgmt.
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Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quotation and citation omitted).
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Under Federal Rule of Civil Procedure 41(a)(2), a plaintiff may request dismissal after an opposing
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party has served a motion for summary judgment “only by court order, on terms that the court
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considers proper.” Fed. R. Civ. P. 41(a)(2).
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Here, Defendant Horowitz has filed an answer to the Second Amended Complaint, with a
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demand for a jury trial. (ECF No. 27.) Therefore, Plaintiff’s notice is properly construed as a motion
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requesting dismissal pursuant to Rule 41(a)(2).
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“A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should
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be granted unless a defendant can show that it will suffer some plain legal prejudice as a result of the
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dismissal.” Hepp v. Conoco, Inc., 97 F. App’x 124, 125 (9th Cir. 2004) (citations omitted). “Legal
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prejudice is prejudice to ‘some legal interest, some legal claim, [or] some legal argument.’” Maxum
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Indem. Ins. Co. v. A-1 All Am. Roofing Co., 299 F. App’x 664, 666 (9th Cir. 2008) (quoting
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Westlands Water Dist. V. United States, 100 F.3d 94, 97 (9th Cir. 1996)). “One circumstance in which
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a defendant suffers legal prejudice is where a voluntary dismissal potentially unravels the effect of an
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earlier legal ruling. Put another way, plaintiffs may not use Rule 41(a)(2) to avoid or undo the effect of
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an unfavorable order or ruling.” RMD Concessions, LLC v. Westfield Corp., 194 F.R.D. 241 (E.D.
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Va. 2000).
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A motion for voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of
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the district court. Hamilton v. Firestone Tire & Rubber Co. Inc., 679 F.2d 143, 145 (9th Cir. 1982). In
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most cases where terms are imposed, the terms “have involved conditions that require payment of
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costs and attorney’s fees.” LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976) (citations
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omitted). However, the court “is not limited to conditions of payment of costs, expenses and fees. The
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dismissal may be conditioned upon the imposition of other terms designed to reduce inconvenience to
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the defendant.” Id. (citations omitted).
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In this case, on August 24, 2017, Defendant filed a motion for sanctions against Plaintiff based
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on the failure to produce discovery responses in violation of the Court’s order. (ECF No. 40.) On July
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14, 2017, the Court issued an order granting Defendant’s motion to compel discovery responses
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regarding the exhaustion of administrative remedies, and ordered Plaintiff to produce them within
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thirty (30) days of that order. Defense counsel declares that Plaintiff has failed to do so, and requested
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terminating sanctions or, in the alternative, evidentiary sanctions against Plaintiff. Defendant argues in
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the motion that Plaintiff’s failure to respond has prejudiced Defendant by hampering her efforts to
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investigate Plaintiff’s allegations and prepare a motion for summary judgment for the failure to
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exhaust administrative remedies, and by requiring the repeated preparation of motions regarding this
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discovery. As stated in Defendant’s reply in support of the motion for sanctions, Plaintiff has not filed
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any response or opposition to the motion, although a response is overdue. (ECF No. 41.) Instead,
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Plaintiff filed the instant request for voluntary dismissal without prejudice.
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A dismissal at this juncture in this action would prejudice Defendant’s legal rights concerning
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the production of the discovery previously ordered in this case, which Defendant has argued is
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necessary for the proper preparation of her defenses here. The Court therefore recommends, for
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protection of Defendant, that the production of the discovery responses as set forth in the Court’s July
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14, 2017 order, within a reasonable deadline, be a prerequisite to a voluntary dismissal without
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prejudice. By requiring that Plaintiff produce the discovery under such circumstances, the Defendant
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will be protected from any prejudice by a dismissal. See Eaddy v. Little, 234 F. Supp. 377, 381
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(E.D.S.C. 1964) (ordering production of certain documents as prerequisite to a voluntary dismissal
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with prejudice); see also In re Vitamins Antitrust Litig., 198 F.R.D. 296, 305-06 (D.D.C. 2000)
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(conditioning voluntary dismissal without prejudice and without costs on production of responses to
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document requests and interrogatories previously noticed).
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III.
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CONCLUSION
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that Plaintiff’s motion to
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voluntarily dismiss this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2)
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(ECF No. 42), be granted, on the condition that Plaintiff produce the discovery responses ordered as
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set forth in the Court’s July 14, 2017 order.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)
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days after being served with these Findings and Recommendations, the parties may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on
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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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September 20, 2017
UNITED STATES MAGISTRATE JUDGE
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