Sutton v. Warner

Filing 63

ORDER Granting 58 Plaintiff's Motion for Voluntary Dismissal. All claims are DISMISSED WITHOUT PREJUDICE. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator) PRINT 5 PAGES AND THE NEF.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

JASON LEE SUTTON,

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Plaintiff,

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4:14-CV-5055-EFS

ORDER GRANTING PLAINTIFF’S MOTION
FOR VOLUNTARY DISMISSAL

v.
BERNARD WARNER, STEVEN
SINCLAIR, JUAN PALOMO and
CHARLES PEASE,
Defendants.

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Plaintiff has moved to dismiss his case pursuant to Federal Rule

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of

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Response. ECF No. 62.

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suggest the Court exercise its discretion as to whether the dismissal

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should be with prejudice, whether conditions should be included, and

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whether terms should be awarded. The Court has carefully reviewed the

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Plaintiff’s Motion and the Response of the Defendants. For the reasons

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stated below, the Court GRANTS Plaintiff's Motion to Dismiss.

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Civil

Procedure

Federal

Rule

41(a)(1).

of

ECF

No.

58.

Defendants

filed

their

Defendants do not object to the dismissal but

Civil

Procedure

41(a)

governs

voluntary

dismissal and provides in relevant part:
“(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e),
23.1(c), 23.2, and 66 and any applicable federal
statute, the plaintiff may dismiss an action without a
court order by filing:

ORDER - 1

(i)

a notice of dismissal before the opposing
party serves either an answer or a motion
for summary judgment; or
(ii) a stipulation of dismissal signed by all
parties who have appeared.
(B) Effect. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if
the plaintiff previously dismissed any federal- or
state-court action based on or including the same
claim,
a
notice
of
dismissal
operates
as
an
adjudication on the merits.

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(2) By Court Order; Effect. 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. . . . Unless the order states otherwise,
a dismissal under this paragraph (2) is without prejudice.
Fed. R. Civ. P. 41(A).

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Because Defendants have served a motion for summary judgment,

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this case can only be dismissed by a stipulation of dismissal signed

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by all parties or by court order.

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Id.

A motion for voluntary dismissal “is addressed to the district

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court’s sound discretion.”

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B.V., 889 F.2d 919, 921 (9th Cir. 1989).

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dismiss without prejudice, the district court must determine whether

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the defendant will suffer some plain legal prejudice as a result of

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the dismissal.”

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96 (9th Cir. 1996).

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interest, some legal claim, [or] some legal argument.”

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Legal prejudice does not arise from the prospect of a second lawsuit,

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tactical advantage gained by the plaintiff, or a missed opportunity to

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receive a ruling on the merits.

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1355 (D. Nev. 1989).

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defendant’s effort and expense of preparation for trial, excessive

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Stevedoring Servs. of Am. v. Armilla Int’l
“When ruling on a motion to

Westlands Water Dist. v. United States, 100 F.3d 94,
Legal prejudice is “prejudice to some legal
Id. at 97.

Watson v. Clark, 716 F. Supp. 1354,

The court should “consider such factors as the

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delay

and

lack

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prosecuting the action, insufficient explanation for the need to take

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a dismissal, and whether a motion for summary judgment has been filed

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by the defendant.”

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716, 718 (6th Cir. 1994); see also Pace v. S. Express Co., 409 F.2d

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331, 334 (7th Cir. 1969); see also Arias v. Cameron, 776 F.3d 1262,

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1275

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equities” when deciding a motion to voluntarily dismiss).

(11th

of

Cir.

diligence

on

the

part

of

the

plaintiff

Grover by Grover v. Eli Lilly and Co., 33 F.3d

2015)

(stating

that

the

court

should

“weigh

Here, this case was served on Defendants one year ago.

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in

the

See ECF

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Nos. 16–20.

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and the Scheduling Conference was held on December 17, 2014, ECF No.

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25.

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had to respond to a motion for class certification, a motion for a

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preliminary injunction, and the currently pending motions.

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also prepared and filed their motion for summary judgment.

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46.

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on the part of the pro se plaintiff.

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recognizing the deficiencies in his complaint and has no immediate

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plans

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segregation.

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Defendants

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factors weigh in favor of granting voluntary dismissal.

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Defense counsel appeared on August 22, 2014, ECF No. 21,

Defendants have not yet had to prepare for trial, but they have

Defendants
ECF No.

There is no indication of excessive delay or lack of diligence

to

re-file
In

will

the

same

granting
not

claims
the

experience

Plaintiff filed this motion

unless

Plaintiff’s
legal

he

is

motion

prejudice.

again
to

placed

in

dismiss,

the

Additionally,

the

Courts often condition dismissal without prejudice on payment of

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defendant’s

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Stevedoring Servs., 889 F.2d at 921.

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granted leave to proceed in forma pauperis, awarding costs and fees

ORDER - 3

costs

and

attorneys’

fees,

but

this

is

not

required.

Here, because Plaintiff has been

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would not be practical.

ECF No. 10.

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Court

of

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plaintiff re-files:

impose

costs

a

previously

dismissed

action

if

the

(d) Costs of a Previously Dismissed Action. If a plaintiff
who previously dismissed an action in any court files an
action based on or including the same claim against the
same defendant, the court:
(1) may order the plaintiff to pay all or part of the
costs of that previous action;
and
(2) may stay the proceedings until the plaintiff has
complied.

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to

However, Rule 41(d) allows the

Fed. R. Civ. P. 41(d).

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The Court declines to award terms or impose conditions at this

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time. However, if the Plaintiff refiles a complaint with the same

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claims or that includes the same claims, the Defendants may bring a

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motion under Rule 41(d). The Court expresses no position on the merits

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of such motion.
The Court, therefore, grants the Plaintiff’s motion to dismiss

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without prejudice.

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IT IS HEREBY ORDERED:

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1.

The

Plaintiff’s

Motion

for

Dismissal,

ECF

No.

58,

is

GRANTED.

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2.

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All

claims

are

DISMISSED

WITHOUT

PREJUDICE,

with

parties to bear their own costs and attorneys’ fees.

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3.

All pending motions are DENIED AS MOOT.

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4.

All hearings and other deadlines are STRICKEN.

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5.

The Clerk’s Office is directed to CLOSE this file.

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//

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//

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all

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IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this 18th

day of August 2015.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2014\5055.vol.dis.lc2.docx

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