United States of America v. $237,632.29 In Funds Seized From Bank of America Acct #XXXXX52266 et al

Filing 27

ORDER DENYING CLAIMANT'S MOTION TO DISMISS PURSUANT TO FRCP 41(a)(2) AND TO GRANT ATTORNEY'S FEES by Judge William Alsup [denying 20 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 11/19/2012)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, 10 No. C 12-04416 WHA v. For the Northern District of California United States District Court Plaintiff, 11 12 13 14 $237,632.29 IN FUNDS SEIZED FROM BANK OF AMERICA ACCT #XXXXX52266; $60,435.64 IN FUNDS SEIZED FROM JPMORGAN CHASE ACCT #XXXX26654, ORDER DENYING CLAIMANT’S MOTION TO DISMISS PURSUANT TO FRCP 41(a)(2) AND TO GRANT ATTORNEY’S FEES 15 Defendants. 16 / 17 INTRODUCTION 18 In this forfeiture action, claimant seeks an order dismissing the complaint with prejudice 19 pursuant to FRCP 41(a)(2) and an award of attorney’s fees. For the following reasons, 20 claimant’s motion is DENIED. 21 STATEMENT 22 On August 22, 2012, the United States filed a complaint for forfeiture against defendants 23 $237,632.29 in funds seized from a Bank of America account and $60,435.65 in funds seized 24 from a JPMorgan Chase account. On September 5, Citi Alliance, Inc. filed a verified claim in the 25 action. On September 24, the government filed a request for voluntary dismissal stating 26 “pursuant to the provisions of [FRCP] 41(a)(2) . . . it is in the best interest to voluntarily dismiss 27 the instant forfeiture action, without prejudice . . . Plaintiff United States of America respectfully 28 14). The government also included a proposed order with its request. The subsection relied on 3 was (a)(2), a circumstance of some importance on this motion. On September 25, claimant filed 4 an answer to the complaint. In response and on that same day, the government filed a notice of 5 withdrawal of the proposed order of voluntary dismissal. The government explained that because 6 it had had the right to dismiss this action without an order, the action should be deemed dismissed 7 pursuant to FRCP 41(a)(1) when it filed the September 24 request; therefore it said it was 8 withdrawing the unnecessary proposed order. In response, claimant filed a motion requesting 9 that this action be dismissed with prejudice by an order pursuant to FRCP 41(a)(2) and requesting 10 an award of attorney’s fees. Claimant contends that the government did not properly dismiss this 11 For the Northern District of California requests that this Court dismiss this instant civil forfeiture action without prejudice” (Dkt. No. 2 United States District Court 1 action pursuant to FRCP 41(a)(1) and the government cannot now voluntarily dismiss this action 12 without a court order because claimant has answered. Claimant also seeks an award of attorney’s 13 fees. Both the government and claimant were required to submit supplemental briefing prior to 14 oral argument, which was held on November 8. 15 16 17 18 ANALYSIS Both the government and claimant agree that this action should be dismissed. They do not agree, however, on the form and conditions of dismissal. Claimant had not yet filed an answer or motion for summary judgment when the 19 government sought an order to voluntarily dismiss this action. Accordingly, under FRCP 41(a)(1) 20 the government could simply have dismissed its claims against claimant, without an order. 21 It did not do this, however, instead, the government requested dismissal pursuant to 22 FRCP 41(a)(2). The government was entitled to withdraw its FRCP 41(a)(2) motion. 23 The withdrawal, however, left the civil action in place because an answer was meanwhile 24 filed by claimant. Therefore, FRCP 41(a)(1) was possibly no longer available as an avenue 25 of dismissal unless this order allows the government to treat its earlier motion to a notice of 26 dismissal under FRCP 41(a)(1) and to deem it as if made when the FRCP 41(a)(2) motion 27 was filed. This order need not reach whether to allow such a conversion because under 28 FRCP 41(a)(2) this order finds dismissal without prejudice to be appropriate, the action being 2 so recently filed and so little having been done in it. The request for voluntary dismissal came 2 approximately one month after the complaint was filed. With the exception of the instant motion, 3 no motion practice or discovery has ensued. Unless otherwise specified, dismissal pursuant to 4 FRCP 41(a)(2) is without prejudice. It is, however, within a court’s discretion to dismiss with 5 prejudice. Dismissal with prejudice is appropriate if it would be inequitable or prejudicial to the 6 defendant to allow the plaintiff to re-file the action. Factors to be considered include: “(1) the 7 defendant’s effort and expense in preparing for trial, (2) excessive delay and lack of diligence on 8 the part of the plaintiff in prosecuting the actions, [and] (3) insufficient explanation of the need 9 to take a dismissal.” Williams, 227 F.R.D. at 540 (citing Burnette, 828 F. Supp. at 1443–44). 10 In the instant case, the factors support a dismissal without prejudice. First, the lack of 11 For the Northern District of California United States District Court 1 effort and expense in preparing for trial strongly supports dismissal without prejudice. This 12 action is at a very early stage and minimal expenses have therefore been incurred. The request for 13 voluntary dismissal came approximately one month after the complaint was filed. With the 14 exception of the instant motion, no motion practice or discovery has ensued. Second, on these 15 facts there simply is not delay or a lack of diligence. The government promptly moved to 16 dismiss this action, doing so within one month of filing the complaint. Furthermore, this motion 17 for dismissal would have been timely had the government chosen the more efficient strategy and 18 filed a notice of dismissal under FRCP 41(a)(1). In regards to the third factor, the government, 19 despite being allowed supplemental briefing, has not adequately explained its reason for seeking 20 voluntary dismissal. The other two factors, however, support dismissal without prejudice. For the 21 above stated reasons, this order finds that dismissal without prejudice is appropriate. 22 Although costs may be awarded as a condition for dismissing without prejudice our court 23 of appeals has determined that awarding costs and fees is not mandatory. Westlands Water Dist. 24 v. United States, 100 F.3d 94, 97 (9th Cir. 1996). Here, because the action is in the very early 25 stages and minimal work has been done it is unnecessary to award attorney’s fees to claimant. 26 27 28 3 1 2 3 CONCLUSION For the above-stated reasons, the action is dismissed without prejudice. The motion for fees is DENIED. 4 5 IT IS SO ORDERED. 6 7 Dated: November 16, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?