Egan v. Singer

Filing 42

ORDER GRANTING MOTION FOR VOLUNTARY DISMISSAL re 16 , 20 , 32 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/27/2014. "The court grants Plaintiff's motion to dismiss without prejudice and denies Defendant& #039;s request for attorneys' fees and costs. In light of this ruling, Defendant's pending motion to dismiss and motion for summary judgment are terminated. The Clerk of Court is directed to enter judgment pursuant to this order and to c lose this case." (emt, )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). Michael F. Egan, III shall be served by first class mail at the address of record on August 27, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL F. EGAN III,

)
)
Plaintiff,
)
)
vs.
)
)
BRYAN JAY SINGER,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 14-00177 SOM/BMK
ORDER GRANTING MOTION FOR
VOLUNTARY DISMISSAL

ORDER GRANTING MOTION FOR VOLUNTARY DISMISSAL
I.

INTRODUCTION.
Plaintiff Michael F. Egan III moves for dismissal of

this action without prejudice pursuant to Rule 41(a)(2) of the
Federal Rules of Civil Procedure.

The court grants Plaintiff’s

motion.
II.

FACTUAL BACKGROUND.
Plaintiff filed a Complaint against Defendant Bryan Jay

Singer on April 16, 2014.

ECF No. 1.

On May 21, 2014, Defendant

filed a motion to dismiss for lack of jurisdiction, ECF No. 16,
followed by a motion for summary judgment on May 29, 2014, ECF
No. 20.
On May 29, 2014, Plaintiff’s counsel filed a motion to
withdraw as counsel.

ECF No. 27.

In his opposition to the

motion to withdraw as counsel, Plaintiff requested a court order
dismissing his action without prejudice.

ECF No. 32.

The motion

to withdraw as counsel was granted on August 6, 2014, and

Plaintiff’s opposition to the motion was construed as a motion to
dismiss without prejudice.
III.

ECF No. 33.

STANDARD.
Rule 41(a)(1) of the Federal Rules of Civil Procedure

permits a plaintiff to dismiss an action without a court order by
filing a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment.

When, as in

the present case, an opposing party has served a motion for
summary judgment, a plaintiff may voluntarily dismiss an action
only by court order pursuant to Rule 41(a)(2) of the Federal
Rules of Civil Procedure.1

Rule 41(a)(2) states: “Except as

provided in Rule 41(a)(1), an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court
considers proper.”
“A motion for voluntary dismissal under Rule 41(a)(2)
is addressed to the district court’s sound discretion[.]”
Stevedoring Servs. of Am. v. Armilla Int’l B.V., 889 F.2d 919,
921 (9th Cir. 1989).

“The purpose of the rule is to permit a

plaintiff to dismiss an action without prejudice so long as the
defendant will not be prejudiced, or unfairly affected by
dismissal.”

Id. (citations omitted).

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Therefore, “[a] district

The court construes Egan’s request for dismissal pursuant
to Rule 41(a)(2) of the Hawaii Rules of Civil Procedure as a
request under Rule 41(a)(2) of the Federal Rules of Civil
Procedure.
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court should grant a motion for voluntary dismissal under Rule
41(a)(2) unless a defendant can show that it will suffer some
plain legal prejudice as a result.”

Smith v. Lenches, 263 F.3d

972, 975 (9th Cir. 2001) (citations omitted).
“Legal prejudice” is “prejudice to some legal interest,
some legal claim, [or] some legal argument.”

Id. at 976

(internal quotation marks and citation omitted).

“Uncertainty

because a dispute remains unresolved” or “the threat of future
litigation which causes uncertainty” does not constitute plain
legal prejudice.”

Westlands Water Dist. v. United States, 100

F.3d 94, 96-97 (9th Cir. 1996).

“Also, plain legal prejudice

does not result merely because the defendant will be
inconvenienced by having to defend in another forum or where a
plaintiff would gain a tactical advantage by that dismissal.”
Smith, 263 F.3d at 976.
IV.

ANALYSIS.
Defendant fails to demonstrate that he will suffer

plain legal prejudice as a result of voluntary dismissal under
Rule 41(a)(2).
In opposition to Plaintiff’s motion to dismiss without
prejudice, Defendant argues that he will suffer plain legal
prejudice because: (1) he has incurred significant expense
defending against Plaintiff’s suit; (2) his reputation has been
tarnished; and (3) Plaintiff fails to provide a “valid basis” for

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seeking dismissal without prejudice.

ECF No. 35.

None of these

constitutes plain legal prejudice.
A.

Expense Incurred.

Contrary to Defendant’s assertions, Defendant will not
suffer plain legal prejudice from voluntary dismissal as a result
of the expense he has incurred in this action.

The Ninth Circuit

has “explicitly stated that the expense incurred in defending
against a lawsuit does not amount to legal prejudice.”
Westlands, 100 F.3d at 97.
B.

Harm to Reputation.

Defendant fails to demonstrate that harm to his
reputation constitutes plain legal prejudice.

Legal prejudice

refers to “prejudice to some legal interest, some legal claim,
[or] some legal argument.”

Smith, 263 F.3d at 976.

Damage to

one’s reputation is not ordinarily connected to a legal interest,
claim, or argument, and is not so connected in this case.

Any

alleged damage to Defendant’s reputation may well be ameliorated
by Plaintiff’s voluntary dismissal of this action.
C.

Existence of a Valid Basis for Seeking Dismissal.

In opposition to Plaintiff’s motion for dismissal,
Defendant also argues that Plaintiff “does not provide a valid
basis for requesting a dismissal without prejudice.”
PageID # 173.

ECF No. 35,

According to Defendant, the only basis for

dismissal Plaintiff provides is that he lacks the ability to file
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opposition papers to Defendant’s motions within the time
permitted.

Id.

Defendant argues that this “excuse is not valid”

for multiple reasons.

Id.

However, it is unclear how an

allegedly invalid excuse for dismissal on Plaintiff’s part
relates to whether Defendant will suffer legal prejudice as a
result of voluntary dismissal.
Defendant’s only other contention in support of his
argument that Plaintiff lacks a valid basis for seeking dismissal
is that Plaintiff’s “only reason for filing this Motion is to
avoid losing on summary judgment,” and that the motion for
dismissal should be denied on this basis pursuant to Maxum
Indemnity Insurance Company v. A-1 All American Roofing Co., 299
F. App’x 664 (9th Cir. 2008).

ECF No. 35, PageID # 173.

The

court disagrees.
First, Maxum Indemnity states only that a district
court “may consider whether the plaintiff is requesting a
voluntary dismissal only to avoid a near-certain adverse ruling.”
Id. at 666 (emphasis added).

The case does not require a court

to deny voluntary dismissal if Plaintiff may intend, through
voluntary dismissal, to avoid an adverse ruling.
Second, the circumstances present in Maxum Indemnity
that warranted reliance upon a desire to avoid an adverse ruling
are not present in this case.

In Maxum Indemnity, the district

court had indicated prior to the motion for voluntary dismissal

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how it intended to rule on the underlying claims.
case, the court has given no such indication.

Id.

In this

The distinction

between this case and Maxum Indemnity is confirmed by the case on
which Maxum Indemnity relies, in which a magistrate judge had
issued his report and recommendation on the underlying claims
before a motion for voluntary dismissal was filed.
v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988).

See Terrovona
With no such

circumstance present in this case, this court is not persuaded
that Plaintiff’s motion for dismissal must or should be denied
based on a desire to avoid “a near-certain adverse ruling.”
D.

Fees and Costs.

Defendant argues that any dismissal should be
conditioned upon the payment of attorneys’ fees and costs.
No. 35, PageID # 171.

ECF

Defendant fails, however, to even identify

what his fees and costs are.

Not only is a requested dollar

amount absent from Defendant’s papers, Defendant attaches no
billing records or summaries of fees and costs incurred.

This

court has a detailed local rule setting forth the material that
must accompany a motion for fees and nontaxable costs.
Rule 54.3.

See Local

No less detail is required when fees and costs are

requested in opposition to a motion to dismiss.
This court is left with no basis on which to evaluate
the fees and costs requested.

See Favoured Developments Ltd. v.

Lomas, No. C06-02752 MJJ, 2007 WL 3105107, at *3 (N.D. Cal. Oct.

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23, 2007); Tur v. YouTube, Inc., No. CV 06-4436 FMC (AJWX), 2007
WL 4947615, at *4 (C.D. Cal. Oct. 19, 2007), aff’d, 323 F. App’x
532 (9th Cir. 2009).

The court cannot determine, for example,

whether any fees and costs are attributable to work that might be
useful in other litigation between the parties.

See Koch v.

Hankins, 8 F.3d 650, 652 (9th Cir. 1993) (“[A] defendant is
entitled only to recover, as a condition of dismissal under
Fed.R.Civ.P. 41(a)(2), attorneys fees or costs for work which is
not useful in continuing litigation between the parties.”); see
also Westlands, 100 F.3d at 97 (“Here, if the district court
decides it should condition dismissal on the payment of costs and
attorney[s’] fees, the defendants should only be awarded attorney
fees for work which cannot be used in any future litigation of
these claims.”).
The court also notes that the “[i]mposition of costs
and fees as a condition for dismissing without prejudice is not
mandatory[.]”

Westlands, 100 F.3d at 97; see also Stevedoring

Servs. of Am., 889 F.2d at 921 (“[N]o circuit court has held that
payment of the defendant’s costs and attorney[s’] fees is a
prerequisite to an order granting voluntary dismissal.

Moreover,

several courts have specifically held that such payment is not
required.”).

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This court concludes that Defendant has not established
that dismissal should be conditioned on an award of fees and
costs.
V.

CONCLUSION.
The court grants Plaintiff’s motion to dismiss without

prejudice and denies Defendant’s request for attorneys’ fees and
costs.

In light of this ruling, Defendant’s pending motion to

dismiss and motion for summary judgment are terminated.
The Clerk of Court is directed to enter judgment
pursuant to this order and to close this case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 27, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Egan v. Singer, Civ. No. 14-00177 SOM/BMK; ORDER GRANTING MOTION FOR VOLUNTARY
DISMISSAL

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