Grindling v. Martone et al

Filing 26

ORDER DENYING MOTION FOR RECONSIDERATION 25 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/17/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRIS GRINDLING, #A0721079,

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)
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Plaintiff,
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vs.
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FREDERICK MARTONE, et al.,
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Defendants.
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_____________________________ )

NO. 1:12-cv-00361 LEK/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
Before the court is Plaintiff’s Motion to Reconsider
Dismissal, ECF #25.

Plaintiff complains that the court credited

his request to voluntarily dismiss this action, but did not
return his filing fee.
Dismissal, ECF #21.

See Ord. Directing Entry of Voluntary

Plaintiff claims that he only wanted to

dismiss this action if his filing fees were returned.

In

essence, Plaintiff seeks to rescind his notice of voluntary
dismissal of this action because it did not garner the result he
sought.

Plaintiff’s Motion is DENIED.
“A motion for reconsideration under Rule 59(e) should

not be granted, absent highly unusual circumstances, unless the
district court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change in
the controlling law.”

McQuillion v. Duncan, 342 F.3d 1012, 1014

(9th Cir. 2003) (internal citations and emphasis omitted).

This

type of motion seeks “a substantive change of mind by the court.”
Tripati v. Henman, 845 F.2d 205, 206 n. 1 (9th Cir. 1988)
(quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526
(9th Cir. 1983)).

A successful motion for reconsideration must

demonstrate some reason that the court should reconsider its
prior decision and set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision.

White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw.

2006).
On September 19, 2012, Plaintiff filed his “Motion to
Refund Filing Fee Due to Voluntary Withdrawal of this Case.”
Mot., ECF #18, #22.

Plaintiff stated that he disagreed with this

court’s rulings “that have no reason[,] logic[,] or truth,” and
vehemently asserted that “there is no sense in prosecuting a case
with obvious bias.”

See ECF #18, PageID #135.

Plaintiff

unequivocally dismissed his case, and, other than in the title of
his motion, provided no argument or reason why his filing fee
should be refunded.
The Federal Rules of Civil Procedure allow plaintiffs
the absolute right to dismiss an action without a court order by
filing (1) a notice of dismissal before the opposing party serves
an answer or a motion for summary judgment or (2) a stipulation
of dismissal signed by all parties who have appeared.
Civ. P. 41(a)(1); see ECF #21.

Fed. R.

The court therefore directed the
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Clerk of Court to enter Plaintiff’s unambiguous notice of
voluntary dismissal.

See ECF #21, PageID #144-48.

This

dismissal is without prejudice and Plaintiff is free to pursue
another action in this court at a later date if that is his
decision.

See Semtek Int’l Inc. v. Lockheed Martin Corp., 531

U.S. 497 (2001).

Moreover, voluntary dismissals by notice or

stipulation and court order are treated alike with respect to
finality and appealability — that is, they are appealable if made
with prejudice and not appealable if without prejudice.
v. London, 62 F.3d 1493, (9th Cir. 1995).

Concha

“[A]s numerous federal

courts have made clear, a voluntary dismissal without prejudice
under Rule 41(a) leaves the situation as if the action never had
been filed . . . the action no longer is pending in the district
court and no further proceedings in the action are proper.”

9

Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2367, at 321 (3d ed. 2008) (“A voluntary dismissal
without prejudice leaves the situation as if the action never had
been filed.”); City of South Pasadena v. Mineta, 284 F.3d 1154,
1157 (9th Cir. 2002).
Plaintiff did not condition his notice of voluntary
dismissal of this case upon a refund of his filing fee, nor would
the court have agreed to such a condition.

Plaintiff provides no

reason for this court to reconsider the Order directing entry of
voluntary dismissal of this action and denying his motion for
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refund of his filing fees.

Further, having entered Plaintiff’s

notice of dismissal, this case is no longer pending in this
court, and it is unclear if the court even retains jurisdiction
to consider this motion.

See Qureshi v. United States, 600 F.3d

523, 525 (5th Cir. 2010) (stating that, in the normal course, a
district court is divested of jurisdiction over case by filing of
notice of dismissal itself, except over certain collateral
matters).

Plaintiff fails to set forth facts or law of a

strongly convincing nature persuading this court to reverse its
September 28, 2012 Order Directing Entry of Voluntary Dismissal
and this Motion is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 17, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Grindling v. Martone, 1:12-cv-00361 LEK/BMK; ORDER DENYING MOTION FOR
RECONSIDERATION;G:\docs\prose attys\Recon\DMP\2012\Grindling 12-361 lek (dny recon
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