Hibnick v. Google Inc.

Filing 66

Declaration of Gary E. Mson in Support of 65 MOTION for Attorney Fees Notice of Motion; Class Counsel's Application for Attorneys' Fees and Reimbursement of Expenses filed byJohn Case, Barry Feldman, Lauren Maytin, Mark Neyer, Andranik Souvalian, Katherine C Wagner, Rochelle Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Related document(s) 65 ) (Mason, Gary) (Filed on 12/20/2010)

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NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ALVION S. THOMPSON, Plaintiff, v. SAN JOSE POLICE DEPARTMENT, et al. Defendants.

Case Number C 05-2195 JF (PVT) ORDER1 DISMISSING ACTION WITHOUT PREJUDICE

Plai ntiff , proceeding pro se, filed this action on May 27, 2005, and on the same date requested leave to proceed in forma pauperis and requested appointment of counsel. Those motions were denied. On August 16, 2005, the Court granted Plaintiff's request for voluntary dism issal of the action without prejudice. On October 26, 2005, Plaintiff filed a one-page document requesting that the action be reopened and that Plaintiff be permitted to proceed in forma pauperis. On November 4, 2005, the Court granted Plaintiff's motion to reopen the case upon the condition that he pay the filing fee, and denied his renewed application to proceed in forma pauperis. Plaintiff filed an amended complaint on January 19, 2006 and paid the $250

This disposition is not designated for publication and may not be cited.

Case No. C 05-2195 JF (PVT) O R D E R DISMISSING ACTION (JFLC2)

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filing fee on January 25, 2006. Plaintiff filed proofs of service with respect to Defendants San Jose Police Department and the California Department of Corrections shortly thereafter. On February 22, 2006, Defendant City of San Jose, erroneously sued as the "San Jose Police Department," filed a motion to dismiss the action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was set for hearing on April 28, 2006. The Department of Corrections did not file a motion or answer. On February 22, 2006, Plaintiff filed a motion for default judgment, which motion was declined by the Clerk of the Court the following day. Plaintiff filed opposition to Defendant City's motion on March 3, 2006, but failed to serve a copy of the opposition upon Defendant Ci ty; as a result, the City did not file a reply. On April 24, 2006, Plaintiff filed a motion for voluntary dismissal of the action, stating that he now believes that the action properly should be pursued in state court, and requesting a refund of his $250 filing fee. Plaintiff failed to serve a copy of the motion upon Defendant City; as a result, the City did not file a response to the motion. Pursuant to Federal Rule of Civil Procedure 41(a), a plaintiff is entitled to dismiss an action without leave of court at any time before the defendant answers or files a motion for summary judgment. Such dismissal is without prejudice, except that such dismissal operates as an adjudication on the merits "when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim." Fed. R. Civ. P. 41(a). It is not clear whether Plaintiff's prior dismissal of this action comes within this latter provision, in light of the fact that the action subsequently was reopened. Because Plaintiff wishes to dismiss the instant action in order to pursue it in state court, the Court concludes that dismissing the instant action on the merits would be unjust. Accordingly, the Court will grant Plaintiff's motion to dismiss the instant action without prejudice to Plaintiff's filing of the same claims in state court. The Court cannot grant Plaintiff's request for a refund of his $250 filing fee; Plaintiff has not cited, and the Court has not discovered, any authority that would permit such a refund. 2
C a se No. C 05-2195 JF (PVT) O R D E R DISMISSING ACTION (JFLC2)

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ORDER Plaintiff's motion for voluntary dismissal of the instant action is GRANTED as set forth above; Defendant City's motion to dismiss is MOOT; The action is DISMISSED WITHOUT PREJUDICE; and The Clerk of the Court shall close the file.

__________________________________ JEREMY FOGEL Unit ed States District Judge

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Copies of Order served on:

Plaintiff pro se: Alvion S. Thompson 96 Almaden Street # 305 San Jose, CA 95113 Alvion S. Thompson 1352 Old Rose Pl. San Jose, CA 95128 Counsel for Defendant City of San Jose: Michael J. Dodson Office of the City Attorney City of San Jose 200 East Santa Clara Street San Jose, CA 95113-1905

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C a se No. C 05-2195 JF (PVT) O R D E R DISMISSING ACTION (JFLC2)