Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUSSELL ELLIOTT and NELLY Case No. 24-cv-00447-BAS-JLB ELLIOTT, 12 ORDER: Plaintiffs, 13 (1) GRANTING IN PART AND v. DENYING IN PART 14 PLAINTIFFS’ MOTION FOR SPE TERRA NOVA APARTMENT 15 VOLUNTARY DISMISSAL OWNERS LLC., et al., (ECF No. 138); AND 16 Defendants. (2) DENYING AS MOOT 17 REMAINING MOTIONS 18 (ECF Nos. 129, 130, 134) 19 For the reasons discussed below, the Court GRANTS IN PART and DENIES IN 20 PART the motion for voluntary dismissal submitted by Plaintiffs Russell and Nelly Elliott. 21 (ECF No. 138.) More specifically, the Court grants dismissal, but rather than dismissing 22 the case without prejudice, the Court DISMISSES WITH PREJUDICE the present 23 action. Accordingly, the Court DENIES AS MOOT remaining motions. (ECF Nos. 129, 24 130, 134.) The Clerk of Court is DIRECTED TO CLOSE the current action. 25 I. LEGAL STANDARD 26 Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), a plaintiff may dismiss an 27 action without a court order by filing a notice of dismissal before the opposing party serves 28 1 either an answer or a motion for summary judgment. “Except as provided in Rule 41(a)(1), 2 an action may be dismissed at the plaintiff’s request only by court order, on terms that the 3 court considers proper.” Fed. R. Civ. P. 41(a)(2). “The Ninth Circuit has long held that 4 the decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound 5 discretion of the [d]istrict [c]ourt[.]” Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 6 143, 145 (9th Cir. 1982). 7 “A district court should grant a motion for dismissal under Rule 41(a)(2) unless a 8 defendant can show it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 9 263 F.3d 972, 975 (9th Cir. 2001). “Legal prejudice” is “prejudice to some legal interest, 10 some legal claim, [or] some legal argument.” Westlands Water Dist. v. United States, 100 11 F.3d 94, 97 (9th Cir. 1996). 12 A defendant is not said to suffer “legal prejudice” from: (1) “[u]ncertainty because 13 a dispute remains unresolved” or the “threat of future litigation”; (2) the inconvenience of 14 having to defend itself in a different forum; or (3) a plaintiff gaining a tactical advantage 15 through dismissal. Smith, 263 F.3d at 976 (citing Hamilton, 679 F.2d at 145). Furthermore, 16 “the expense incurred in defending against a lawsuit does not amount to legal prejudice.” 17 Westlands Water Dist., 100 F.3d at 97. 18 II. ANALYSIS 19 As an initial matter, the Court agrees with Defendants that because they moved for 20 summary judgment, Plaintiffs can no longer dismiss the action unilaterally under Rule 21 41(a)(1)(A)(i). (ECF No. 144 at 2:22–24.) The Court now turns to Defendants’ arguments 22 under Rule 41(a)(2). 23 A. Whether Voluntary Dismissal Under Rule 41(a)(2) Is Appropriate 24 Defendants argue that dismissal would be impractical because their motions in the 25 current dispute remain unresolved, Plaintiffs move to dismiss to gain a tactical advantage 26 and plan to sue them in another forum (i.e., state court), and Defendants have already 27 incurred significant expenses in defending the present action. (ECF No. 144 at 4:16– 28 11:14.) However, courts have explicitly held that these reasons are insufficient to 1 demonstrate legal prejudice and thus to oppose voluntary dismissal under Rule 41(a)(2). 2 See Smith, 263 F.3d at 976 (citing Hamilton, 679 F.2d at 145) (threat of future litigation, 3 different forum, movant seeking tactical advantage); Westlands Water Dist., 100 F.3d at 4 97 (expenses incurred by nonmovant). 5 Defendants also argue that the length and stage of current litigation weigh against 6 voluntary dismissal under Rule 41(a)(2). (ECF No. 144 at 8:8–10 (“Plaintiffs seek to 7 relocate the litigation only after approximately two and one-half years of discovery, 8 discovery disputes and violations, and dispositive-motion practice.”).) However, “the 9 relevant inquiry is not how long a case had been pending but whether dismissal is sought 10 by the plaintiff at a stage at which legal prejudice to the defendant is likely to ensue.” Segal 11 v. Segel, No. 20-cv-1382-BAS-JLB, 2022 WL 848324, at *3 (S.D. Cal. Mar. 22, 2022) 12 (citing Watson v. Clark, 716 F. Supp. 1354, 1356 (D. Nev. 1989), aff’d, 909 F.2d 1490 (9th 13 Cir. 1990)). Although the Court has denied Defendants’ motion for summary judgment 14 because it relied on improperly noticed requests for information (see ECF No. 86), the 15 Court did not rule on the merits of the underlying case. Accordingly, the Court finds that 16 the length of litigation and its current stage do not amount to legal prejudice to Defendants 17 upon dismissal. 18 B. Whether Dismissal Without Prejudice Is Appropriate 19 Generally, district courts have discretion to dismiss a case with or without prejudice 20 under Rule 41(a)(2). Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1279 (9th Cir. 2023). 21 “But [the Ninth Circuit has] cabined that discretion by repeatedly holding that ‘[w]here the 22 request is to dismiss without prejudice, “[a] District Court should grant a motion for 23 voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer 24 some plain legal prejudice as a result.’”” Id. at 1279 (internal citations omitted). 25 Plaintiffs request dismissal of the current action without prejudice. (See ECF No. 26 138.) Defendants argue that, if the Court dismisses the case at all, it should dismiss the 27 case with prejudice based on the current stage of litigation (ECF No. 144 at 10:16–11:14), 28 Defendants’ earlier-filed and unopposed motions (id. at 11:15–12:19), Plaintiffs’ possible 1 || evasion of the consequences of their own litigation conduct (id. at 12:20—13:14), and costs 2 ||already spent on the litigation (id. at 13:15-14:18). Although these reasons do not 3 ||demonstrate “plain legal prejudice” to Defendants in the event of dismissal, see supra 4 ||§ ILA, the Court finds Plaintiffs’ continued litigation conduct would prejudice Defendants 5 ||if the case were not dismissed with prejudice. Kamal, 88 F.4th at 1279. 6 Indeed, Plaintiffs have consistently failed to participate in discovery and to 7 || participate in court-ordered depositions throughout this action, all at expense to 8 || Defendants. Given that Plaintiffs’ inaction precludes resolution of the case for Defendants 9 disturbs the Court’s docket management, the Court finds dismissing the case with 10 || prejudice is appropriate. See Fed. R. Civ. P. 41(b) (authorizing a court to dismiss an action 11 |} with prejudice when the plaintiff fails to prosecute or to comply with a court order); 12 || Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (dismissing with prejudice in part 13 || because “[i]t is incumbent upon the Court to manage its docket without being subject to 14 || routine noncompliance of litigants”); Malone v. United States Postal Serv., 833 F.2d 128, 15 }}131 (9th Cir. 1987) (dismissing with prejudice because plaintiff's absence and inaction 16 || precludes resolution of the case for the defendants). 17 || I. CONCLUSION 18 For the reasons above, the Court GRANTS IN PART and DENIES IN PART the 19 motion for voluntary dismissal submitted by Plaintiffs Russell and Nelly Elliott. (ECF No. 20 138.) More specifically, the Court grants dismissal, but rather than dismissing the case 21 || without prejudice, the Court DISMISSES WITH PREJUDICE the present action. 22 || Accordingly, the Court DENIES AS MOOT remaining motions. (ECF Nos. 129, 130, 23 || 134.) The Clerk of Court is DIRECTED TO CLOSE the current action. 24 IT IS SO ORDERED. 25 ~ 26 || DATED: September 2, 2026 pallu Bahar □□ 47 H n. Cynthia Bashant, Chief Judge United States District Court 28 _A_