Kelly v. City of Poway
- Proceeding
- district
- Area
- civil
- On appeal
- Kevin Kelly v. City of Poway (2023-12-19) — affirmed — the Ninth Circuit's later ruling on this docket
- Panel
- Jinsook Ohta (author)
Analysis
Pro se plaintiff Kevin T. Kelly moved to voluntarily dismiss his three remaining claims to preserve his right to appeal the court's prior order dismissing the rest of his complaint. The court granted the motion, dismissing the action without prejudice and ordering the entry of final judgment.
| What the court decided | The model |
|---|---|
Plaintiff's request for voluntary dismissal of the action is granted.“For the reasons discussed above, the Court GRANTS Plaintiffs request for voluntary dismissal [Dkt. 64]. The action is dismissed without prejudice and the Clerk of the Court is instructed to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.” | agree with court The court correctly applied Federal Rule of Civil Procedure 41(a)(1)(A)(i), which allows 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. The order recites that the defendant had served neither an answer nor a motion for summary judgment, and the defendant did not object. Therefore, the plaintiff was entitled to dismiss the action as of right. The dismissal without prejudice preserves the plaintiff's ability to refile or appeal, consistent with the plaintiff's stated intent to stand on the complaint for appellate review. |
The order itself: sound — The order is procedurally sound. It correctly identifies the applicable rule (Rule 41(a)(1)), verifies the prerequisites for dismissal as of right (no answer or summary judgment motion served), and notes the lack of objection from the defendant. It also correctly construes the plaintiff's ambiguous filing as a request for voluntary dismissal based on the plaintiff's stated intent to appeal, citing appropriate Ninth Circuit authority for that intent. The result follows directly from the law and the facts recited.
Opinion
1 2 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN T. KELLY, Case No.: 18cv2615-JO-DEB 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF’S 14 REQUEST FOR VOLUNTARY CITY OF POWAY, a municipal 15 DISMISSAL corporation, 16 Defendant. 17 18 19 20 21 Pro se Plaintiff Kevin T. Kelly1 moved to voluntarily dismiss his three remaining 22 claims under either Federal Rule of Civil Procedure 15 or Federal Rule of Civil Procedure 23 41, and requested that the Court enter judgment as to all claims under Federal Rule of Civil 24 Procedure 58. Dkt. 64. For the reasons stated below, the Court grants the motion. 25 26 27 28 1 I. DISCUSSION 2 On May 13, 2022, the Court granted in part and denied in part Defendant’s motion 3 to dismiss Plaintiff’s third amended complaint. Dkt. 59. In its order, the Court granted 4 Defendant’s motion to dismiss but found that three of Plaintiff’s claims survived: (1) Claim 5 6 regarding Defendant’s failure to obtain “Waste Discharge Requirements” for Pipperin 6 Crossing in violation of its Permit; (2) Claim 7 regarding Defendant’s failure to properly 7 implement “best management practices” in violation of its Permit; and (3) Claim 8 8 regarding Defendant’s violation of the Endangered Species Act by cutting the Del Mar 9 Manzanita. See id. The Court dismissed Plaintiff’s remaining claims without prejudice 10 but did not grant leave to amend because Plaintiff did not ask for it. See id. 11 On June 7, 2022, Plaintiff filed a motion requesting that the Court dismiss his three 12 remaining claims pursuant to either Rule 15 or Rule 41. See Dkt. 64. In this motion, 13 Plaintiff requests to dismiss “his three remaining claims without prejudice and enter final 14 judgment on all other claims,” which would dispose of the entire action. Id. at 3, 5, 10. 15 Plaintiff makes clear that he is seeking this dismissal so that he can stand on his third 16 amended complaint and file an appeal on the merits of the question whether the complaint 17 is adequate as a matter of law. See id. at 9; Edwards v. Marin Park, Inc., 356 F.3d 1058, 18 1065 (9th Cir. 2004) (discussing a plaintiff’s “right to stand on a complaint” and seek 19 appellate review). Although Plaintiff’s filing is captioned as a motion seeking leave to 20 amend, the Court therefore construes this motion as a request for voluntary dismissal and 21 entry of judgement, consistent with Plaintiff’s intent. 22 The Court finds that Plaintiff is entitled to voluntary dismissal of the action at this 23 juncture. Under Rule 41(a)(1), a “plaintiff may dismiss an action without a court order by 24 filing . . . a notice of dismissal before the opposing party serves either an answer or a 25 motion for summary judgment.” Fed. R. Civ. P. 41(a)(1). Here, Defendant has filed 26 neither and, moreover, they do not object to Plaintiff’s request for voluntary dismissal. See 27 Dkt. 68. Accordingly, Plaintiff is entitled to voluntarily dismiss this action. 28 /// 1 Il. CONCLUSION AND ORDER 2 For the reasons discussed above, the Court GRANTS Plaintiffs request for 3 || voluntary dismissal [Dkt. 64]. The action is dismissed without prejudice and the Clerk of 4 ||the Court is instructed to close this matter and enter judgment pursuant to Rule 58 of the 5 || Federal Rules of Civil Procedure. 6 7 IT ISSO ORDERED. 8 || Dated: September 22, 2022 Cc) — 9 C LY _— 10 Hon. Jinsook Ohta "1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28