Ardalan v. McHugh et al

Filing 110

ORDER DENYING 108 Letter Request to Dismiss This Action Without Prejudice. Signed by Judge Beth Labson Freeman on 5/15/2015. (blflc3S, COURT STAFF) (Filed on 5/15/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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FERIAL KAREN ARDALAN,

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Case No. 13-cv-01138-BLF

Plaintiff,
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v.
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JOHN MCHUGH,

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Defendant.

ORDER DENYING PLAINTIFF'S
LETTER REQUEST TO DISMISS THIS
ACTION WITHOUT PREJUDICE
[Re: ECF 108]

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United States District Court
Northern District of California

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Plaintiff moves, through a letter request,1 for an Order permitting her to dismiss this action

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without prejudice pursuant to Federal Rule of Civil Procedure 41. Defendant opposes. For the

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reasons below, the Court DENIES Plaintiff’s request.
Rule 41 governs dismissal of actions. Under Rule 41(a)(1), a party may dismiss an action

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without prejudice at any time under one of two conditions: either (1) the opposing party has not

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answered or filed a motion for summary judgment, or (2) all parties stipulate to the dismissal.

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Neither circumstance is present here: Defendant has answered Plaintiff’s SAC, see ECF 93, and

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Defendant declined to stipulate to a dismissal. See ECF 108, 109.
This request is therefore governed by Rule 41(a)(2), which states that “[e]xcept as provided

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in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on

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terms that the court considers proper.” In this circuit, when adjudicating a motion to dismiss an

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action under Rule 41(a)(2), the Court “must consider whether the defendant will suffer some plain

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legal prejudice as a result of the dismissal.” Hamilton v. Firestone Tire & Rubber Co., Inc., 679

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F.2d 143, 145 (9th Cir. 1982). Mere threat of future litigation, without more, does not constitute

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legal prejudice. See Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996).

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The Court construes the letter request as an administrative motion brought pursuant to Civil
Local Rule 7-11.

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Rather, legal prejudice is “prejudice to some legal interest, some legal claim, [or] some legal

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argument.” Id. Courts in this district have considered several factors when determining prejudice,

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including the defendant’s “effort and expense” in the litigation, “excessive delay and lack of

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diligence by the [plaintiff],” “insufficient explanation of the need for dismissal,” and “the fact that

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the opposing party has moved for summary judgment.” Williams v. Peralta Cmty. Coll. Dist., 227

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F.R.D. 538, 540 (N.D. Cal. 2005). Ruling on a Rule 41(a)(2) motion is “addressed to the sound

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discretion of the District Court.” Westlands at 97 (compiling cases).

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In this case, Defendant has established that he would be prejudiced were this action to be

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dismissed without prejudice. This is Plaintiff’s fourth lawsuit alleging claims stemming from her
1995 termination from, and subsequent non-rehiring by, the Defense Language Institute. This

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United States District Court
Northern District of California

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particular action, filed over two years ago on March 13, 2013, has gone through three rounds of

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motions to dismiss, multiple motions for equitable estoppel and tolling, and two motions for

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reconsideration. Defendant has expended substantial energy, as has Plaintiff, just to prepare the

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pleadings in this case for discovery in an attempt to move this case toward final resolution.

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Plaintiff’s case having survived Defendant’s third motion to dismiss, Defendant answered

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and reached out to Plaintiff to begin discovery. See ECF 104, 105. The parties were ultimately

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unable to agree to a discovery plan, and went before the assigned Magistrate Judge to adjudicate

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their discovery disputes. The Order on the parties’ discovery dispute, filed on April 22, 2015,

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required Plaintiff to complete discovery in good faith, including ordering her to serve her initial

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disclosures and respond to Defendant’s written discovery and requests for production no later than

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May 15, 2015, as well as sign a release form permitting Defendant to obtain her medical records

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by that date. Plaintiff was also ordered to sit for a deposition on June 15, 2015.

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Now, two years into the suit and following this extensive litigation on the part of all

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parties, Plaintiff seeks to dismiss this action without prejudice. Defendant is correct that an order

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permitting such a dismissal without prejudice would “allow [Plaintiff] to refile an identical lawsuit

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tomorrow, unencumbered by those Court Orders” already entered in this action. Opp., ECF 109 at

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1. This would legally prejudice Defendant, who would then return to square one in this litigation

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despite substantial time and expense spent defending against this action. Further, Plaintiff’s
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motion comes after she has failed to engage in good faith in discovery in this action, including

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failing to meet-and-confer with defense counsel in person to resolve their discovery disputes, and

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after she has twice sought to have this case reassigned to another judge. See ECF 27, 99. The

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Court cannot help but be concerned that Plaintiff’s motion for voluntary dismissal is an attempt at

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forum shopping due to her displeasure at how the Court has limited her case through the motions

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to dismiss and denials of her motions for reconsideration.

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The Court finds that three of the four Williams factors support denying Plaintiff’s motion:

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the expense and effort on the part of Defendant in litigating this action in this Court, Plaintiff’s

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lack of diligence in prosecuting this action, specifically with regard to her discovery obligations,
and Plaintiff’s insufficient explanation of the need for dismissal without prejudice. Any one of

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United States District Court
Northern District of California

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these factors, standing alone, would support the Court’s denial of this motion, or otherwise to

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demand that the dismissal be with prejudice. Williams at 540.

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In Burnette v. Godshall, the district court noted that “[w]hether to allow dismissal with or

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without prejudice is discretionary with the court, and it may order the dismissal to be with

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prejudice where it would be inequitable or prejudicial to defendant to allow plaintiff to refile the

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action.” 828 F. Supp. 1439, 1444 (N.D. Cal. 1993) (emphasis added). Such a circumstance is

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present here. Plaintiff has repeatedly sought redress for her claims against Defendant with regard

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to her termination and the subsequent failure of DLI to rehire her. This action, now two years old,

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has been narrowed, discovery has commenced, and the case is being prepared for summary

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judgment and trial. It would severely prejudice Defendant to begin anew in this litigation.

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Plaintiff’s motion for voluntary dismissal is therefore DENIED. Plaintiff may dismiss this action

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with prejudice, but otherwise must comply with her court-ordered discovery and scheduling

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obligations to prepare this suit for adjudication.

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IT IS SO ORDERED.
Dated: May 15, 2015
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BETH LABSON FREEMAN
United States District Judge

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