Sekendur v. United States of America

Filing 11

ORDER granting pltf's 8 Motion to Dismiss by Judge Ricardo S Martinez.(RS)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10
11

MESRURE SEKENDUR,

No. 2:14-cv-00121 RSM

Plaintiff,
v.

12
UNITED STATES OF AMERICA,

ORDER GRANTING MOTION TO DISMISS
WITHOUT PREJUDICE

13
14

Defendant.

15
16

This matter comes before the Court on Motion for Dismissal without Prejudice by Plaintiff

17

Mesrure Sekendur. Dkt. # 8. Plaintiff seeks to voluntarily dismiss her lawsuit pursuant to Federal Rule

18

of Civil Procedure 41(a)(2) in order to litigate her claims in a different venue. Defendant does not

19

oppose the relief sought by Plaintiff but “leaves it to the Court’s discretion to determine whether to

20

impose terms on the dismissal.” Dkt. # 9, p. 3.

21

Federal Rule of Civil Procedure 41(a)(2) provides that after a defendant serves either an

22

answer or motion for summary judgment, and absent stipulation of dismissal by the parties, “an action

23

may be dismissed at the plaintiff’s request only by court order, on terms that the court considers

24

proper.” Fed. R. Civ. P. 41(a)(2). “When ruling on a motion to dismiss without prejudice, the district

25

court must determine whether the defendant will suffer some plain legal prejudice as a result of the

26

dismissal.” Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996). Legal prejudice

ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE - 1

1

means “prejudice to some legal interest, some legal claim, some legal argument.” Id. at 97. Prejudice

2

does not exist simply because a suit remains unresolved. Id. Nor does it exist on account of the

3

prospect that defendant will face a second lawsuit, where the plaintiff stands to gain a tactical

4

advantage, or due to trial preparations or substantial expense incurred by the defendant. See Hamilton

5

v. Firestone Tire & Rubber Co., 679 F.2d 143, 145-46 (9th Cir. 1982).

6

Defendant does not explicitly contend that it will be prejudiced should the Court grant the

7

relief requested by Plaintiff. Rather, Defendant alerts the Court that Plaintiff pursued this action for

8

seven months while her son pursued a motion seeking identical relief before the Northern District of

9

Illinois. See Dkt. # 9. Defendant is accordingly “concerned by the fact that Mrs. Sekendur and her son

10

have already wasted judicial resources by simultaneously seeking the same relief in this Court and the

11

[Northern District of Illinois], respectively.” Id. at p. 3.

12
13
14
15
16
17
18
19
20
21
22
23
24

Defendant’s concern is not sufficient to warrant denial of Plaintiff’s motion or the imposition
of conditions. Neither this Court nor the Northern District of Illinois has reached the merits of
Plaintiff’s claim, see Dkt. # 10, Ex. 3, and Defendant does not face the loss of a statute-of-limitations
defense, a federal forum, or some other legal interest which could amount to legal prejudice. See
Westlands, 100 F.3d at 97. While the Court may condition dismissal on payment of appropriate costs
and fees, id., the fact that no discovery and no motions practice has yet been undertaken in this
proceeding militates against the imposition of such conditions. Cf. Mitchell-Jones v. Menzies Aviation,
Inc., 2011 WL 3273221 (W.D. Wash. 2011) (conditioning voluntary dismissal where the matter had
been pending for more than a year and the parties had pursued considerable discovery and motions
practice). Further, Defendant has not shown that any work involved in defending against this suit
could not be used in any future litigation of the dismissed claims. See Westlands, 100 F.3d at 97
(cautioning that “defendants should only be awarded attorney fees for work which cannot be used in
any future litigation of these claims”).

25
26

ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE - 2

1

Accordingly, for the above-stated reasons, the Court hereby ORDERS that Plaintiff’s Motion

2

for Dismissal without Prejudice (Dkt. # 8) is GRANTED. This action is dismissed without prejudice

3

and without imposition of conditions.

4
5
6
7

DATED this 2 day of December 2014.

A

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE - 3