United States District Court, Western District of Washington, Tacoma
ORDER GRANTING PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL AND DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE United States District Judge
This matter comes before the Court on Plaintiff Rick Olmstead’s (“Olmstead”) motion for voluntary dismissal (Dkt. 62) and Defendant Ray Mabus’s (“Mabus”) motion to dismiss and/or for summary judgment (Dkt. 46). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants Olmstead’s motion and denies as moot Mabus’s motion for the reasons stated herein.
I. PROCEDURAL HISTORY
On January 23, 2013, Olmstead filed a complaint against Mabus, in his official capacity as Secretary of the Navy, alleging age discrimination and harassment in violation of the Age Discrimination in Employment Act. Dkt. 1. On January 29, 2014, Mabus filed a motion to dismiss and/or for summary judgment. Dkt. 16. On March 10, 2014, the Court granted Mabus’s motion. Dkt. 31.
On March 21, 2014, the Court granted Olmstead leave to file an amended complaint. Dkt. 32. On March 27, 2014, Olmstead filed an amended complaint, alleging that the Navy retaliated against him for filing his earlier lawsuit. Dkt. 33.
On December 10, 2014, Mabus moved to dismiss and/or for summary judgment. Dkt. 46. On December 16, 2014, Olmstead moved to voluntary dismiss his suit under Fed.R.Civ.P. 41(a)(2). Dkt. 62. On December 22, 2014, Mabus replied. Dkt. 64.
Olmstead moves to voluntarily dismiss under Rule 41(a)(2). Dkt. 62. Mabus does not oppose Olmstead’s motion. Dkt. 64. Mabus, however, argues that dismissal should be with prejudice. Id.
Under Rule 41(a)(2), “an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2). The decision to grant or deny a request pursuant to Rule 41(a)(2) is within the sound discretion of the district court and is reviewed only for abuse of discretion. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). “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.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001).
In order to protect the defendant’s interest in having to relitigate the matter, the Court may condition “the dismissal without prejudice upon the payment of appropriate costs and attorney fees.” Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). The defendant, however, “should only be awarded attorney fees for work which cannot be used in any future litigation of these claims.” Id. (citing Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993)).
Here, Mabus does not oppose Olmstead’s motion, and no legal prejudice has been identified. The Court therefore grants Olmstead’s motion for voluntary dismissal. In order to protect Mabus’s interest, the Court conditions this dismissal on the payment of costs and attorney fees for work that cannot be used in future litigation of Olmstead’s claims. Accordingly, the Court will set a briefing schedule to determine the proper amount, if any, of Mabus’s costs and fees.
Therefore, it is hereby ORDERED that Olmstead’s motion for voluntary dismissal (Dkt. 62) is GRANTED. This action is DISMISSED without prejudice. Mabus’s motion to dismiss and/or for summary judgment (Dkt. 46) is DENIED as moot.
Mabus may file a brief regarding the proper amount of costs and fees no later than January 16, 2015. Olmstead may file a response brief no later than January 23, 2015. The Clerk shall ...