Thompson v. Safety-Kleen Systems Inc
2:06-cv-01270
W.D. Wash.
Aug 28, 2007
Check Treatment
Docket
Case Information

*1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

_______________________________________

)

LANCE THOMPSON and DARA SINGH, )

) No. C06-1270RSL Plaintiffs, )

v. ) ORDER GRANTING PLAINTIFF ) ) ) SINGH’S MOTION FOR VOLUNTARY NONSUIT SAFETY-KLEEN SYSTEMS, INC., et al. ,

Defendants. )

_______________________________________)

I. INTRODUCTION

This matter comes before the Court on “Plaintiff Dara Singh’s Motion for Voluntary Nonsuit” (Dkt. #48). In his motion, plaintiff Singh requests dismissal of his claims under Fed. R. Civ. P. 41(a)(2) without prejudice for medical reasons. Defendants oppose plaintiff’s motion and request dismissal of plaintiff’s claims with prejudice and an award of attorney’s fees and costs for defending against plaintiff’s claims. See Dkt. #60 (Response). For the reasons

discussed below, the Court grants plaintiff’s motion for voluntary dismissal.

II. DISCUSSION

Plaintiff moves for dismissal under Fed. R. Civ. P. 41(a)(2), which states: [A]n action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a *2 dismissal under this paragraph is without prejudice.

Fed. R. Civ. P. 41(a)(2). The decision to grant the motion to dismiss rests within the discretion of the court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). “A dismissal under Rule 41(a)(2) normally is without prejudice, as explicitly stated in that rule.” Smith v. Lenches, 263 F.3d 972, 976 (9th Cir. 2001).

“A district 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.” Id. at 975. The Ninth Circuit defines plain legal prejudice as “just that - prejudice to some legal interest, some legal claim, some legal argument.” Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). “[T]he expense incurred in defending against a lawsuit does not amount to legal prejudice.” Id. In this case, defendants have not asserted counterclaims and the Court finds that defendants have not identified any legal prejudice that will result from plaintiff’s dismissal. While in their opposition defendants seek to “hold Plaintiff Singh accountable” for the “multitude of proceedings which he initiated and against which he has forced Defendants to defend,” this, by itself, does not constitute legal prejudice. See Response at 4, ¶12.

To protect a defendant, however, the district court may include terms and conditions with a voluntary dismissal. Westlands Water Dist., 100 F.3d at 97. Although costs and attorney’s fees are often imposed upon a plaintiff who is granted a voluntary dismissal under Rule 41(a)(2), payment of the defendant’s costs and attorney’s fees is not a prerequisite to an order granting voluntary dismissal. Stevedoring Serv. of Am. v. Armilla Int’l B.V., 889 F.2d 919, 921 (9th Cir. 1989). In this case, the Court does not attach conditions to the voluntary dismissal. In their response, defendants seek recovery of reasonable expenses, in part, because plaintiff failed to appear for his deposition on June 7, 2007 and because defendants allege that plaintiff failed to fully and timely produce discovery responses under the Court’s May 25, 2007 Order. See Response at ¶¶5, 6, 12; Dkt. #23. The Court, however, has already addressed these issues in its *3 “Order Granting In Part and Denying In Part Defendants’ Motion for Sanctions Against Plaintiff Singh,” where the Court concluded that an award of reasonable expenses was appropriate because of plaintiff’s failure to attend his deposition. As plaintiff notes in his reply, “[i]t should be noted that defense fees and costs are not awarded to defendants who prevail, on the merits, in cases brought under the state and federal employment discrimination statutes except in extraordinary circumstances and where defendant demonstrates that the case was ‘frivolous.’” Reply at 3 n.1 (emphasis in original). While in Stevedoring, the Ninth Circuit addressed a similar argument and ultimately concluded that “no court has refused an award of costs and attorney fees under Fed. R. Civ. P. 41(a)(2) on this basis alone,” the Court here weighs this consideration as a factor in declining to impose conditions to dismissal in this case. Stevedoring, 889 F.2d at 921 (emphasis added). For these reasons, because the Court has already sanctioned plaintiff for conduct addressed in defendants’ response, the Court in its discretion here declines to attach additional conditions upon dismissal.

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS “Plaintiff Dara Singh’s Motion for Voluntary Nonsuit” (Dkt. #48). Plaintiff’s claims are dismissed without prejudice and without terms or conditions.

DATED this 28th day of August, 2007.

A Robert S. Lasnik

United States District Judge